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The Biden administration would prohibit blanket bans that “categorically” bar transgender students from participating in the sport consistent with their gender identity under a proposed amendment to federal civil rights law.
The amendment to the regulations for Title IX of the Education Amendments of 1972 would require schools, colleges and universities to set sport-specific criteria that take into account “important educational objectives” as well as the level of competition and education level of those involved if the institution is applying sex-related rules that would limit or deny a transgender student’s ability to participate on a team consistent with their gender identity.
“Some objectives, such as the disapproval of transgender students or desire to harm a particular student, would not qualify as important educational objectives,” a senior department official whom the department asked not to be identified said in a call with reporters.
The proposed rule comes as transgender rights have become a lightning rod in American politics; a wave of states has banned transgender athletes from participating in girls’ and women’s sports at the K-12 and postsecondary level. The Associated Press reports that 20 states have adopted restrictions on transgender athletes. Lawmakers also have passed bills that would govern which bathrooms transgender people can use and their access to gender-affirming care. The Supreme Court ruled Thursday to leave in place an injunction against West Virginia that blocks the state from enforcing its ban on transgender student athletes at the college level as well as in middle and high schools.
The Biden administration’s rule means that colleges and universities will risk their federal funding if they follow state laws that ban participation in athletics by transgender students. Lawsuits challenging the rule are likely.
“Federal civil rights law is the law of the land, and we would be eager to ensure its full satisfaction in every school community around the country,” the senior department official said, adding that she’s confident in the department’s legal position.
The institutions’ adopted criteria also need to minimize harm to transgender students who are not able to participate. Institutions could lose their access to federal funds if they don’t comply with the proposed regulation, which is not yet final. The department will take public comments on the amendment before finalizing the rule.
The Biden administration’s latest proposal builds off its proposed Title IX regulations that expanded protections for transgender students. The administration said last summer it would issue a separate rule governing transgender students’ participation in school sports.
“Every student should be able to have the full experience of attending school in America, including participating in athletics, free from discrimination,” U.S. Secretary of Education Miguel Cardona said in a statement. “Being on a sports team is an important part of the school experience for students of all ages.”
Conservatives, Republican lawmakers and Republican attorneys general have criticized the provisions for transgender students in public comments, arguing the regulations could deny female athletes an equal athletic opportunity. House Republicans, led by North Carolina representative Virginia Foxx, who chairs the House Committee on Education and the Workforce, have introduced a bill that would make allowing a transgender woman to participate in an athletic program for women or girls a violation of Title IX.
LGBTQ+ advocacy groups praised the administration’s announcement Thursday.
“Transgender youth are an integral part of every school across this country,” said Imani Rupert-Gordon, executive director of the National Center for Lesbian Rights. “We applaud the Department of Education for recognizing that the law requires that transgender students must be treated fairly and equally and as respected members of their school communities.”
The Alliance Defending Freedom, a conservative legal organization, said the proposed rules “are a slap in the face to female athletes who deserve equal opportunity to compete in their sports.”
“The Department of Education’s rewriting of Title IX degrades women and tells them that their athletic goals and placements do not matter,” ADF senior counsel Christiana Kiefer said in a statement. “When society and the law try to ignore reality, people get hurt. In sports, it’s women and girls who pay the price. Thankfully, a growing number of states are stepping up to protect women’s athletics.”
The proposed regulation would allow schools and colleges to limit the participation of transgender students if they set the required criteria.
“This requirement is consistent with our regulations’ long-standing recognition that schools may deny students opportunities to participate on particular male or female teams based on sex in certain circumstances,” the official said.
Nothing in the proposed rule changes Title IX’s requirements that women and girls be afforded equal athletic opportunity, according to a department fact sheet.
The department said it expected elementary school students to generally be able to participate in the school sports team consistent with their gender identity because it would be difficult for a school to meet the requirements in the proposed amendment.
“Participating in school athletics is an important component of education and provides valuable physical, social, academic, and mental health benefits to students,” the fact sheet states. “Younger students, in particular, benefit from the chance to join a team and learn about teamwork, leadership, and physical fitness.”
However, the department expects that sex-related criteria could limit the participate of some transgender students at the high school and college level, “when [the criteria] enable the school to achieve an important educational objective, such as fairness in competition,” per the fact sheet.
The senior department official said other educational objectives could include protecting safety in the sport. The official stressed that the school or institution would have to look at the needs of a sport and the needs for the grade or education level of students.
“I would caution any school about taking something off the shelf without offering that particularized consideration,” the official said.
Fatima Goss Graves, president and CEO of the National Women’s Law Center, said in a statement that the organization was grateful for the department’s actions to protect transgender students.
“NWLC has been fighting for over 50 years to see Title IX fulfill its promise to ensure all students are given equal opportunities and protected from sex discrimination,” Graves said in a statement. “Extremist politicians continue to manufacture panic over trans girls’ inclusion in school and school athletics instead of addressing the real changes and protections girls need in sports, including equal time and resources in school sports or addressing the rampant sexual abuse of student athletes. LGBTQI students deserve to learn and thrive—not be targets for state-sponsored bullying and violence.”
The Biden administration would prohibit blanket bans that “categorically” bar transgender students from participating in the sport consistent with their gender identity under a proposed amendment to federal civil rights law.
The amendment to the regulations for Title IX of the Education Amendments of 1972 would require schools, colleges and universities to set sport-specific criteria that take into account “important educational objectives” as well as the level of competition and education level of those involved if the institution is applying sex-related rules that would limit or deny a transgender student’s ability to participate on a team consistent with their gender identity.
“Some objectives, such as the disapproval of transgender students or desire to harm a particular student, would not qualify as important educational objectives,” a senior department official whom the department asked not to be identified said in a call with reporters.
The proposed rule comes as transgender rights have become a lightning rod in American politics; a wave of states has banned transgender athletes from participating in girls’ and women’s sports at the K-12 and postsecondary level. The Associated Press reports that 20 states have adopted restrictions on transgender athletes. Lawmakers also have passed bills that would govern which bathrooms transgender people can use and their access to gender-affirming care. The Supreme Court ruled Thursday to leave in place an injunction against West Virginia that blocks the state from enforcing its ban on transgender student athletes at the college level as well as in middle and high schools.
The Biden administration’s rule means that colleges and universities will risk their federal funding if they follow state laws that ban participation in athletics by transgender students. Lawsuits challenging the rule are likely.
“Federal civil rights law is the law of the land, and we would be eager to ensure its full satisfaction in every school community around the country,” the senior department official said, adding that she’s confident in the department’s legal position.
The institutions’ adopted criteria also need to minimize harm to transgender students who are not able to participate. Institutions could lose their access to federal funds if they don’t comply with the proposed regulation, which is not yet final. The department will take public comments on the amendment before finalizing the rule.
The Biden administration’s latest proposal builds off its proposed Title IX regulations that expanded protections for transgender students. The administration said last summer it would issue a separate rule governing transgender students’ participation in school sports.
“Every student should be able to have the full experience of attending school in America, including participating in athletics, free from discrimination,” U.S. Secretary of Education Miguel Cardona said in a statement. “Being on a sports team is an important part of the school experience for students of all ages.”
Conservatives, Republican lawmakers and Republican attorneys general have criticized the provisions for transgender students in public comments, arguing the regulations could deny female athletes an equal athletic opportunity. House Republicans, led by North Carolina representative Virginia Foxx, who chairs the House Committee on Education and the Workforce, have introduced a bill that would make allowing a transgender woman to participate in an athletic program for women or girls a violation of Title IX.
LGBTQ+ advocacy groups praised the administration’s announcement Thursday.
“Transgender youth are an integral part of every school across this country,” said Imani Rupert-Gordon, executive director of the National Center for Lesbian Rights. “We applaud the Department of Education for recognizing that the law requires that transgender students must be treated fairly and equally and as respected members of their school communities.”
The Alliance Defending Freedom, a conservative legal organization, said the proposed rules “are a slap in the face to female athletes who deserve equal opportunity to compete in their sports.”
“The Department of Education’s rewriting of Title IX degrades women and tells them that their athletic goals and placements do not matter,” ADF senior counsel Christiana Kiefer said in a statement. “When society and the law try to ignore reality, people get hurt. In sports, it’s women and girls who pay the price. Thankfully, a growing number of states are stepping up to protect women’s athletics.”
The proposed regulation would allow schools and colleges to limit the participation of transgender students if they set the required criteria.
“This requirement is consistent with our regulations’ long-standing recognition that schools may deny students opportunities to participate on particular male or female teams based on sex in certain circumstances,” the official said.
Nothing in the proposed rule changes Title IX’s requirements that women and girls be afforded equal athletic opportunity, according to a department fact sheet.
The department said it expected elementary school students to generally be able to participate in the school sports team consistent with their gender identity because it would be difficult for a school to meet the requirements in the proposed amendment.
“Participating in school athletics is an important component of education and provides valuable physical, social, academic, and mental health benefits to students,” the fact sheet states. “Younger students, in particular, benefit from the chance to join a team and learn about teamwork, leadership, and physical fitness.”
However, the department expects that sex-related criteria could limit the participate of some transgender students at the high school and college level, “when [the criteria] enable the school to achieve an important educational objective, such as fairness in competition,” per the fact sheet.
The senior department official said other educational objectives could include protecting safety in the sport. The official stressed that the school or institution would have to look at the needs of a sport and the needs for the grade or education level of students.
“I would caution any school about taking something off the shelf without offering that particularized consideration,” the official said.
Fatima Goss Graves, president and CEO of the National Women’s Law Center, said in a statement that the organization was grateful for the department’s actions to protect transgender students.
“NWLC has been fighting for over 50 years to see Title IX fulfill its promise to ensure all students are given equal opportunities and protected from sex discrimination,” Graves said in a statement. “Extremist politicians continue to manufacture panic over trans girls’ inclusion in school and school athletics instead of addressing the real changes and protections girls need in sports, including equal time and resources in school sports or addressing the rampant sexual abuse of student athletes. LGBTQI students deserve to learn and thrive—not be targets for state-sponsored bullying and violence.”
The Education Department is gearing up for the next round of negotiated rule making, which will touch on a variety of issues, from distance education to accreditation to cash management.
The department plans to form at least one rule-making committee, which will begin meeting in fall 2023. Before that, the agency will hear feedback on its agenda in virtual public hearings on April 11 to 13. After those hearings, the department will finalize the issues that will be addressed during negotiated rule making and request nominations for negotiators to serve on the committee.
More information on the hearings is available here.
The department is planning to hold three four-day sessions of negotiated rule making starting in early this fall, according to the notice on the Federal Register.
“The department’s primary responsibility is to serve students and help them succeed,” Education Secretary Miguel Cardona said in a statement. “That means we must continue to take a look at a range of regulations to ensure that colleges and programs serve our students well and that Department processes work in their best interest.”
House Republicans who want to stop President Biden’s student loan policies used a hearing Thursday to outline why they think those policies are harmful to the economy and what changes they would prefer.
Utah representative Burgess Owens, a Republican who chairs the House Higher Education and Workforce Development Subcommittee, focused his first hearing of the new Congress on examining the implications of the Biden administration’s student loan policies for students and taxpayers. The hearing showed the divides between Republicans and Democrats on the subcommittee on student loan issues and higher education more broadly.
“The Biden administration proposal is a patchwork attempt to fix a structural problem that will only make worse the issues of rising prices and low-quality educations—it is one that leaves students worse than if they had never enrolled in the first place,” Owens said.
He added that the hearing also would “present an alternative vision that will lower college costs, limit excessive borrowing, and ensure students and taxpayers get a return on their investment in postsecondary education.”
A key part of that vision appears to be some risk-sharing provision that would require colleges and universities to be financially liable for student loans in the event that a borrower doesn’t repay their loan, according to the queries at the hearing. Higher education associations have historically opposed risk-sharing measures.
Owens said the colleges that have “no skin in the game” are the only ones that benefit from the student debt crisis.
“They push out programs that mean absolutely nothing for the children that come through,” he said. “Children come out in debt and hating their country and not understanding the free market system or loving the process that gave them the opportunities they had. We’ve heard a lot of attacks on for-profits. It’s not for-profits that got us into the problem today. We need to have solutions. We’re at a point now where we need innovative disruptions.”
The Biden administration has embarked on a wide-ranging plan to shore up the federal loan system, which includes closing loopholes, changes to the Public Service Loan Forgiveness program, new borrower defense to repayment regulations and a new income-driven repayment plan. The centerpiece of the student loan policies is the one-time student loan forgiveness, which is currently being challenged by six states and a pair of Texas residents in the Supreme Court. A decision in that case on the legality of the plan is expected later this spring.
The three witnesses called by Republicans said the Biden administration’s policies, which include a pause on student loan payments that’s been in place since March 2020 and one-time forgiveness of up to $20,000 for eligible Americans, would stoke inflation, increase the cost of college and lead to more borrowing among students and worse outcomes.
“At best it’s a temporary Band-Aid,” said Marc Goldwein, senior policy director for the Committee for a Responsible Federal Budget. “It’s more likely to worsen structural problems.”
Adam Looney, an economist who leads the Marriner S. Eccles Institute for Economics and Quantitative Analysis at the University of Utah, said other changes were needed to address the fundamental problems that caused the student loan crisis.
“Useless degree programs and exorbitant costs can’t be solved by encouraging students to take out loans,” he said.
Carlo Salerno, education economist and an independent consultant, said there’s “no reason to think the costs won’t continue to rise without checks or guardrails,” when asked about the effect the student loan policies could have on the average cost of postsecondary education.
Sameer Gadkaree, president of the Institute for College Access and Success and the witness called by Democrats on the committee, outlined how the administration’s policies would support borrowers and called on Congress to lower college costs and double the maximum Pell Grant award so students wouldn’t have to borrow money to attend college.
“The administration’s student loan actions help address the most serious consequences of rising student debt,” he said.
Student borrower advocacy groups criticized the hearing for failing to include the voices of borrowers.
Republican representatives used their time, generally, to criticize the administration’s plans, signal support for risk-sharing and ask about inflation and outcomes. In one exchange, Wisconsin representative Glenn Grothman, a Republican, said the Pell Grant’s current eligibility criteria are “a slap in the face to middle-class America” and the program is “inexcusable.”
Democratic lawmakers voiced their support for the Biden administration’s policies, drew attention to the drop in state funding for public colleges and universities, and highlighted the decline in the Pell Grant’s value, which covers less than about 30 percent of the cost to attend a four-year public college, on average.
Florida representative Frederica Wilson, the top Democrat on the subcommittee, said the criticism of the debt-relief plan reflects a double standard “that speaks volumes to our values.” She compared the debt-relief plan to bailouts of corporations and the auto industry.
“When we decided to bail out the students, all hell breaks loose and the whining turns to outrage,” she said.
She pointed to the recently introduced Lowering Obstacles to Achievement Now (LOAN) Act as a blueprint for how Democrats would address the issues in the student loan system and lower the cost of college. That act would authorize a doubling of the maximum Pell Grant award, make loans less expensive and lower interest rates.
In her closing remarks, she said that she looked forward to working with Owens to help students.
“We are just beginning,” she said.
The Education Department is gearing up for the next round of negotiated rule making, which will touch on a variety of issues, from distance education to accreditation to cash management.
The department plans to form at least one rule-making committee, which will begin meeting in fall 2023. Before that, the agency will hear feedback on its agenda in virtual public hearings on April 11 to 13. After those hearings, the department will finalize the issues that will be addressed during negotiated rule making and request nominations for negotiators to serve on the committee.
More information on the hearings is available here.
The department is planning to hold three four-day sessions of negotiated rule making starting in early this fall, according to the notice on the Federal Register.
“The department’s primary responsibility is to serve students and help them succeed,” Education Secretary Miguel Cardona said in a statement. “That means we must continue to take a look at a range of regulations to ensure that colleges and programs serve our students well and that Department processes work in their best interest.”
House Republicans who want to stop President Biden’s student loan policies used a hearing Thursday to outline why they think those policies are harmful to the economy and what changes they would prefer.
Utah representative Burgess Owens, a Republican who chairs the House Higher Education and Workforce Development Subcommittee, focused his first hearing of the new Congress on examining the implications of the Biden administration’s student loan policies for students and taxpayers. The hearing showed the divides between Republicans and Democrats on the subcommittee on student loan issues and higher education more broadly.
“The Biden administration proposal is a patchwork attempt to fix a structural problem that will only make worse the issues of rising prices and low-quality educations—it is one that leaves students worse than if they had never enrolled in the first place,” Owens said.
He added that the hearing also would “present an alternative vision that will lower college costs, limit excessive borrowing, and ensure students and taxpayers get a return on their investment in postsecondary education.”
A key part of that vision appears to be some risk-sharing provision that would require colleges and universities to be financially liable for student loans in the event that a borrower doesn’t repay their loan, according to the queries at the hearing. Higher education associations have historically opposed risk-sharing measures.
Owens said the colleges that have “no skin in the game” are the only ones that benefit from the student debt crisis.
“They push out programs that mean absolutely nothing for the children that come through,” he said. “Children come out in debt and hating their country and not understanding the free market system or loving the process that gave them the opportunities they had. We’ve heard a lot of attacks on for-profits. It’s not for-profits that got us into the problem today. We need to have solutions. We’re at a point now where we need innovative disruptions.”
The Biden administration has embarked on a wide-ranging plan to shore up the federal loan system, which includes closing loopholes, changes to the Public Service Loan Forgiveness program, new borrower defense to repayment regulations and a new income-driven repayment plan. The centerpiece of the student loan policies is the one-time student loan forgiveness, which is currently being challenged by six states and a pair of Texas residents in the Supreme Court. A decision in that case on the legality of the plan is expected later this spring.
The three witnesses called by Republicans said the Biden administration’s policies, which include a pause on student loan payments that’s been in place since March 2020 and one-time forgiveness of up to $20,000 for eligible Americans, would stoke inflation, increase the cost of college and lead to more borrowing among students and worse outcomes.
“At best it’s a temporary Band-Aid,” said Marc Goldwein, senior policy director for the Committee for a Responsible Federal Budget. “It’s more likely to worsen structural problems.”
Adam Looney, an economist who leads the Marriner S. Eccles Institute for Economics and Quantitative Analysis at the University of Utah, said other changes were needed to address the fundamental problems that caused the student loan crisis.
“Useless degree programs and exorbitant costs can’t be solved by encouraging students to take out loans,” he said.
Carlo Salerno, education economist and an independent consultant, said there’s “no reason to think the costs won’t continue to rise without checks or guardrails,” when asked about the effect the student loan policies could have on the average cost of postsecondary education.
Sameer Gadkaree, president of the Institute for College Access and Success and the witness called by Democrats on the committee, outlined how the administration’s policies would support borrowers and called on Congress to lower college costs and double the maximum Pell Grant award so students wouldn’t have to borrow money to attend college.
“The administration’s student loan actions help address the most serious consequences of rising student debt,” he said.
Student borrower advocacy groups criticized the hearing for failing to include the voices of borrowers.
Republican representatives used their time, generally, to criticize the administration’s plans, signal support for risk-sharing and ask about inflation and outcomes. In one exchange, Wisconsin representative Glenn Grothman, a Republican, said the Pell Grant’s current eligibility criteria are “a slap in the face to middle-class America” and the program is “inexcusable.”
Democratic lawmakers voiced their support for the Biden administration’s policies, drew attention to the drop in state funding for public colleges and universities, and highlighted the decline in the Pell Grant’s value, which covers less than about 30 percent of the cost to attend a four-year public college, on average.
Florida representative Frederica Wilson, the top Democrat on the subcommittee, said the criticism of the debt-relief plan reflects a double standard “that speaks volumes to our values.” She compared the debt-relief plan to bailouts of corporations and the auto industry.
“When we decided to bail out the students, all hell breaks loose and the whining turns to outrage,” she said.
She pointed to the recently introduced Lowering Obstacles to Achievement Now (LOAN) Act as a blueprint for how Democrats would address the issues in the student loan system and lower the cost of college. That act would authorize a doubling of the maximum Pell Grant award, make loans less expensive and lower interest rates.
In her closing remarks, she said that she looked forward to working with Owens to help students.
“We are just beginning,” she said.
President Biden is seeking a third increase to the annual Pell Grant, of $820, as part of his budget request to Congress, which was unveiled Thursday.
Department officials said the budget proposal, which is for fiscal year 2024 beginning Oct. 1, would help build a higher education system that grows the middle class, drives the economy forward and prepares students for highly skilled jobs.
The budget proposal is the opening salvo in what will likely be a fierce budget battle with House Republicans, who have said they want to return spending to pre-pandemic levels. House Republican leaders, including Speaker Kevin McCarthy, criticized the proposal as “reckless” and “unserious.”
Increasing the Pell Grant by is a key part of the administration’s plan to make college more affordable. The grant has increased by $900 in the last three years. The proposed increase would bring the maximum total award to $8,215. Officials say they are committing to doubling the maximum award by 2029.
The administration also is renewing calls for free community college with a $90 billion proposal over 10 years. Further, the administration wants $500 million to jump-start the free community college effort. The $500 million in discretionary funding would go toward partnering with states to pay for community college programs that lead to good-paying jobs in growing industries or four-year degrees. The American Association of Community Colleges did not have a comment Thursday.
The administration also is proposing a tuition subsidy of up to $4,500 per year for two years for students from families earning less than $125,000 who are enrolled in participating four-year historically Black colleges and universities, tribal colleges and universities, or minority-serving institutions. The vast majority of students at those institutions are from families below the cap.
The budget further proposes several investments in workforce training, including $335 million for apprenticeships in certain industries such as construction and clean energy, $100 million to help community colleges partner with employers to develop training models, and $200 million to connect high school students to community colleges and potential employees through dual enrollment, work-based learning and career advising.
The spending plan would give the National Science Foundation $11.3 billion—a nearly $2 billion increase from the current fiscal year—and $48.6 billion to the National Institutes of Health, an increase of $920 million.
The administration said the budget would decrease the country’s deficit by nearly $3 trillion over the next decade in part by proposing a new set of tax increases.
“We can provide students with opportunities and reduce the deficit,” Education Secretary Miguel Cardona said during a media briefing.
The budget requests an additional $620 million for federal student aid, which officials said was critical to ensuring that the agency can deliver on several projects, including simplifying the Free Application for Federal Student Aid and modernizing the student loan servicing system. The Office of Federal Student Aid did not receive additional funding in the current budget in part because of Republicans’ objections to Biden’s student loan forgiveness plan.
The budget request assumes that the administration moves forward with the debt-relief plan, Education under secretary James Kvaal said during a briefing for reporters.
Justin Draeger, president of the National Association of Student Financial Aid Administrators, applauded the Pell Grant increase in a statement as well as the additional funding for federal student aid.
“At a time when the Office of Federal Student Aid is already stretched thin and is implementing many critical initiatives, it cannot be understated how important it will be to ensure that the agency has the necessary resources to complete these monumental undertakings,” Draeger said. “At the same time, we realize that this proposal is just the beginning of a lengthy appropriations process. We call on our colleagues in Congress to work across the aisle to prioritize student aid funding and reforms that will ultimately benefit students and families.”
The budget also would send an additional $429 million to underresourced institutions such as historically Black colleges and universities, tribal colleges and universities, minority-serving institutions, and community colleges.
The administration is proposing $165 million more for student success grant programs and $150 million for mental health programs on college campuses, among other increases. Over all, the Education Department would see $10.8 billion more in discretionary funds under the budget proposal—a nearly 14 percent increase from the current federal budget.
Mark Becker, president of the Association of Public and Land-grant Universities, praised the investments in higher education and research.
“These proposed investments would increase access to quality and affordable higher education and bolster funding for pathbreaking research that saves lives, drives innovation, and improves living standards,” he said in a statement. “Robust investment in a skilled workforce and scientific innovation is vital to U.S. global competitiveness.”
Jon Fansmith, senior vice president for government relations at the American Council on Education, said in a statement that the association was pleased by the many financial aid, research and institutional support programs.
“While there are some areas of the budget request that we are concerned do not address the funding needs of the programs, we will continue to work with the administration and Congress to remedy that through the appropriations process,” he said.
The Institute for College Access & Success issued a statement praising the budget plan.
“Today’s proposal signals the administration’s commitment to our nation’s students and advancing racial and economic equity through higher education,” said the statement. “We now urge policymakers to make these and other essential investments to bring a high-quality, debt-free college education within all students’ reach; protect students and taxpayers from predatory colleges; and provide long-overdue relief to student loan borrowers.”
President Biden is seeking a third increase to the annual Pell Grant, of $820, as part of his budget request to Congress, which was unveiled Thursday.
Department officials said the budget proposal, which is for fiscal year 2024 beginning Oct. 1, would help build a higher education system that grows the middle class, drives the economy forward and prepares students for highly skilled jobs.
The budget proposal is the opening salvo in what will likely be a fierce budget battle with House Republicans, who have said they want to return spending to pre-pandemic levels. House Republican leaders, including Speaker Kevin McCarthy, criticized the proposal as “reckless” and “unserious.”
Increasing the Pell Grant by is a key part of the administration’s plan to make college more affordable. The grant has increased by $900 in the last three years. The proposed increase would bring the maximum total award to $8,215. Officials say they are committing to doubling the maximum award by 2029.
The administration also is renewing calls for free community college with a $90 billion proposal over 10 years. Further, the administration wants $500 million to jump-start the free community college effort. The $500 million in discretionary funding would go toward partnering with states to pay for community college programs that lead to good-paying jobs in growing industries or four-year degrees. The American Association of Community Colleges did not have a comment Thursday.
The administration also is proposing a tuition subsidy of up to $4,500 per year for two years for students from families earning less than $125,000 who are enrolled in participating four-year historically Black colleges and universities, tribal colleges and universities, or minority-serving institutions. The vast majority of students at those institutions are from families below the cap.
The budget further proposes several investments in workforce training, including $335 million for apprenticeships in certain industries such as construction and clean energy, $100 million to help community colleges partner with employers to develop training models, and $200 million to connect high school students to community colleges and potential employees through dual enrollment, work-based learning and career advising.
The spending plan would give the National Science Foundation $11.3 billion—a nearly $2 billion increase from the current fiscal year—and $48.6 billion to the National Institutes of Health, an increase of $920 million.
The administration said the budget would decrease the country’s deficit by nearly $3 trillion over the next decade in part by proposing a new set of tax increases.
“We can provide students with opportunities and reduce the deficit,” Education Secretary Miguel Cardona said during a media briefing.
The budget requests an additional $620 million for federal student aid, which officials said was critical to ensuring that the agency can deliver on several projects, including simplifying the Free Application for Federal Student Aid and modernizing the student loan servicing system. The Office of Federal Student Aid did not receive additional funding in the current budget in part because of Republicans’ objections to Biden’s student loan forgiveness plan.
The budget request assumes that the administration moves forward with the debt-relief plan, Education under secretary James Kvaal said during a briefing for reporters.
Justin Draeger, president of the National Association of Student Financial Aid Administrators, applauded the Pell Grant increase in a statement as well as the additional funding for federal student aid.
“At a time when the Office of Federal Student Aid is already stretched thin and is implementing many critical initiatives, it cannot be understated how important it will be to ensure that the agency has the necessary resources to complete these monumental undertakings,” Draeger said. “At the same time, we realize that this proposal is just the beginning of a lengthy appropriations process. We call on our colleagues in Congress to work across the aisle to prioritize student aid funding and reforms that will ultimately benefit students and families.”
The budget also would send an additional $429 million to underresourced institutions such as historically Black colleges and universities, tribal colleges and universities, minority-serving institutions, and community colleges.
The administration is proposing $165 million more for student success grant programs and $150 million for mental health programs on college campuses, among other increases. Over all, the Education Department would see $10.8 billion more in discretionary funds under the budget proposal—a nearly 14 percent increase from the current federal budget.
Mark Becker, president of the Association of Public and Land-grant Universities, praised the investments in higher education and research.
“These proposed investments would increase access to quality and affordable higher education and bolster funding for pathbreaking research that saves lives, drives innovation, and improves living standards,” he said in a statement. “Robust investment in a skilled workforce and scientific innovation is vital to U.S. global competitiveness.”
Jon Fansmith, senior vice president for government relations at the American Council on Education, said in a statement that the association was pleased by the many financial aid, research and institutional support programs.
“While there are some areas of the budget request that we are concerned do not address the funding needs of the programs, we will continue to work with the administration and Congress to remedy that through the appropriations process,” he said.
The Institute for College Access & Success issued a statement praising the budget plan.
“Today’s proposal signals the administration’s commitment to our nation’s students and advancing racial and economic equity through higher education,” said the statement. “We now urge policymakers to make these and other essential investments to bring a high-quality, debt-free college education within all students’ reach; protect students and taxpayers from predatory colleges; and provide long-overdue relief to student loan borrowers.”
Representative Virginia Foxx is planning to leverage the decline in public perception of higher education to usher in a new era of stronger accountability for the nation’s colleges and universities in her role as chairwoman of the House education committee.
This is “exactly the right time” to reauthorize the Higher Education Act of 1965, Foxx said in a recent interview with Inside Higher Ed. The last reauthorization was in 2008, and the law is supposed to be renewed every five years. Foxx and other lawmakers have tried over the years to pass comprehensive higher education legislation—only for those efforts to fail—and observers are skeptical that meaningful higher education bills can pass both chambers during this session of Congress.
Still, Foxx is hopeful that she can get a bill across the finish line before the end of next year, even though Democrats control the Senate and White House. That’s because, she said, the COVID-19 pandemic exposed gaps in the higher education system and fueled drops in public opinion about higher education.
“The reason I think we can do it this year is because higher ed has never been held in such low esteem as it is now,” she said. “In the past, we had members who were a little shy about doing it, because their presidents of their universities would come to them and say, ‘No, no, no, you can’t bother us,’ and they would be intimidated by them. But I don’t think that’s going to be the case this year.”
In her first two months as chair, Foxx has organized one hearing on the “crises” in American education, filed numerous requests for information with the Department of Education and called attention to the cost and value of a college degree. She’s also shown a willingness to bring the culture wars that have been waged in schools and on college campuses into the hearing room. The committee’s first markup session Wednesday focused on bills that would prevent transgender students from playing on school or college teams that match their gender identity and would create a Parents’ Bill of Rights with regard to children’s education.
“Those are not related to issues of cost or quality or access or innovative practices in higher education,” said Jon Fansmith, senior vice president for government relations at the American Council on Education. “Those are very divisive culture war issues that are being raised.”
Still, Fansmith said that it’s good for higher education that Foxx returned as chair.
“She clearly cares deeply about a lot of issues in higher education,” she said.
Lobbyists and higher ed watchers familiar with the committee’s work acknowledge that Foxx likely wants to pass substantive legislation but cast doubt on her ability to move a reauthorization through Congress, pointing to the need for bipartisan buy-in and the politics of the Republican conference, in which members appear more interested in oversight and messaging bills. The committee’s oversight role and Foxx’s megaphone as chair likely will have the most impact on the national conversation about higher ed, they said.
“The narrative about the value and cost of higher education is something that we care a lot about,” said Craig Lindwarm, vice president for governmental affairs at the Association of Public and Land-grant Universities. “We are very concerned about the narrative and want to make sure that we’re articulating that value proposition appropriately.”
Reauthorizing the Higher Education Act is one of Foxx’s top priorities, along with reauthorizing the Workforce Innovation and Opportunity Act (WIOA), which is aimed at helping job seekers access employment, education and training. Foxx was a key leader in 2014 when the act was last updated.
“She cares about higher education policy and wants to do more substantive legislating,” Lindwarm said, adding that Foxx also has to serve the political goals of the caucus as committee chair. “Is HEA reauthorization really a priority for the caucus?”
The 79-year-old North Carolina Republican has said that she’s the only one in Congress with the legislative and higher ed experience to enact certain reforms. First elected to the House in 2004, she’s developed a reputation as a staunch conservative. In the higher ed realm, she’s a proponent of for-profit institutions and fewer regulations, as well as a fierce opponent of the College Transparency Act, which would’ve given students and families more information about college programs and outcomes by requiring colleges and universities to report certain data.
Before serving in Congress, Foxx was a sociology instructor at Appalachian State University and president of Mayland Community College. She’s a longtime member of the House education committee, which she first chaired during the Trump administration.
“Dr. Foxx has an extraordinary knowledge of federal higher education policy,” said David Baime, senior vice president for governmental relations at the American Association of Community Colleges. “We know how strongly committed she is to workforce Pell, and we are counting on Congress to enact legislation along these lines.”
Foxx already has sponsored legislation this session to expand Pell Grant to programs that run for at least eight weeks. The policy initiative known as short-term Pell or workforce Pell has been a priority for several higher ed groups, including AACC, for several years, but whether for-profit institutions would be included in the expansion has been a sticking point. Foxx wants for-profits included.
Julie Peller, executive director of Higher Learning Advocates, a bipartisan nonprofit that works to improve outcomes for students, said she’s hopeful for Foxx’s tenure as chair, given her focus on community college students and better connecting the world of higher education and the workforce.
“That’s where we see a lot of need for today’s students,” she said.
As far as legislation, Peller and others are doubtful that a full reauthorization will pass, but she’s looking for moments that fit between HEA and WIOA, such as short-term Pell or policies for those who have some college education but no credential.
“I’m encouraged to try to find the things that don’t fit neatly in either reauthorization,” she said.
Passing education-related legislation will require Foxx and other Republicans to work with Vermont senator Bernie Sanders and the Biden administration. Sanders, an Independent who caucuses with Democrats, chairs the Senate Committee on Health, Education, Labor and Pensions.
On Sanders, Foxx said she’s hoping that “people who are to the far right and far left come together” and find common ground.
Sanders hasn’t said much about his higher education priorities yet, though he’s a vocal advocate for free community college. The committee’s top Republican, Louisiana senator Dr. Bill Cassidy, did briefly talk about reauthorizing the Higher Education Act during his remarks at the committee’s first meeting.
On the Biden administration, Foxx said she’s talked to Secretary Miguel Cardona many times but diverging philosophical positions make it difficult to find common ground with officials.
“I get along with them fine, but their worldview is so different from the worldview of the majority of the people in this country that it’s really difficult to understand where they’re coming from,” she said.
When Foxx last led the committee, she proposed ending some loan-repayment plans, adding tying federal funding to outcomes for some institutions and rolling back regulations governing for-profit colleges as part of a bill that would’ve reauthorized the HEA. That bill passed the committee but never received a floor vote.
Since Foxx last held the committee’s gavel, the national conversation about higher education has shifted, in part because of the pandemic. Higher education also has become a wedge issue as voters become more polarized and conservative lawmakers have taken steps to remake state universities.
“The public is much more vocal now than it has been in the past,” she said. “You’re seeing trustees who are aware of the problems in the colleges and universities, and that’s a huge deal. Trustees are now speaking up and forming groups, particularly on speech issues, but also on accountability issues. I am very, very pleased with the responses you’re seeing in the general public.”
Foxx said buy-in from the entire Republican conference will be key to passing comprehensive higher education legislation. She also hopes to get Democrats onboard, but she’s not optimistic.
“Because, for some reason, Democrats don’t seem to want accountability, and that is a major focus for us,” Foxx said.
For Foxx, holding colleges and universities accountable means requiring institutions to give students and parents more information up front about the cost of attendance, graduation rates, job prospects and earnings.
“People can vote with their feet,” she said.
A new accountability system also could have a provision for risk-sharing, in which colleges and universities would be on the hook for loans that students can’t pay back, she said.
“If they’re admitting students who can’t make it, who don’t pay back their loans, we think the school should have to pay some of that money back,” she said.
Higher ed associations opposed the risk-sharing concept when she proposed it in 2017.
On the push at the state level against diversity, equity and inclusion efforts at public universities, Foxx said she wants colleges to have freedom to decide whom they are going to hire, but that doesn’t mean public colleges should require statements from prospective employees about their commitment to diversity, equity and inclusion.
“Government has no business dictating that kind of thing, and there really should not be a penalty for people holding a different point of view than what some people hold,” she said. “That’s all about academic freedom, but we see that the left believes in academic freedom when it goes one way.”
More broadly, Foxx said she wants the country’s education systems to be seen as the best in the world.
“Frankly, right now, that’s eroding,” she said. “People are not looking to the United States as much as they have in the past for having the best education institutions in the world, and that’s troubling to me.”
The Biden administration’s planned changes to how student borrowers can repay their loans likely mean that fewer students will default on their debts—rendering a long-standing student debt and accountability measure more meaningless than it already is, experts say.
The cohort default rate “was already very toothless even before we got to this current juncture,” said Brian Denten, an officer with Pew Charitable Trusts’ project on student borrower success.
Higher education experts and think tank analysts have called on the department in the last few years to revise the cohort default rate, which measures the percentage of borrowers at an institution who have defaulted over a three-year period and can lead to institutions losing access to federal financial aid. The nearly three-year pause on student loan payments, several experts argued, provided an opportunity to introduce new accountability measures as part of a broader rethinking on how to hold colleges and universities accountable. The recently proposed changes to income-driven repayment have intensified those calls.
The department is currently reviewing more than 13,500 comments submitted about the changes as it finalizes the regulations. Officials have said they plan to carry out the new plan this year.
Currently, about one-third of borrowers are enrolled in income-driven repayment plans, which calculate a borrower’s monthly payment based on their discretionary income and family size. The Biden administration is proposing to offer borrowers more generous repayment terms, including smaller payments and forgiveness after 10 years for borrowers with less than $12,000 in loans. Additionally, borrowers also wouldn’t see their balances grow as long as they make monthly payments, and those who are at least 75 days behind on their payments will be automatically enrolled in income-driven repayment.
All those changes mean that fewer borrowers will default, which makes it more difficult for the department to hold institutions accountable using the cohort default rate. Currently, an institution risks losing access to federal financial aid if the rate hits 30 percent for three consecutive years or 40 percent in one year.
“We will still see people defaulting, but the likelihood of finding a school where 30 or 40 percent of borrowers in a single year are defaulting seems hard to imagine,” said Clare McCann, a higher education fellow at the philanthropic Arnold Ventures who previously worked in the Education Department during the current administration.
The overhaul also will impact other publicly reported repayment data. The department currently tracks—and publicly reports—the percentage of borrowers at each institution who are or are not making progress on paying back their loans, those who are in forbearance, and those who are delinquent. The meaning of some repayment rate categories will likely change with the new IDR plan, several experts said.
Denten said the planned changes mean that it’s more important to ensure that students are opting in to income-driven repayment—an effort that colleges and universities can play an important role in. He doesn’t expect institutions to change their behavior in response to the cohort default rate absent federal guidance.
“I think as [the cohort default rate] has incentivized some of these bad outcomes towards getting people into deferment and forbearance,” he said, “a rethink of repayment rate and IDR could do the opposite and help kind of steer people into IDR and really incentivize schools to make sure they’re informing borrowers about this, period.”
Denten said that the changes to income-driven repayment and other debt-relief programs give the department a chance to rethink how it approaches accountability and what successful repayment means.
“I think the department wants to be careful about how it’s thinking about implementing a repayment rate going forward, as a lot of folks might actually show up as really not making much progress at all given the current circumstances,” he said.
He would still like the department to track defaults and delinquencies over time in addition to repayment, though Denten said the team at Pew is still thinking through how accountability could work with the IDR plan.
McCann said that Congress and the Education Department need to rethink what institutional accountability looks like when the cohort default rate measure is gone. She recommended a measure focused on nonpayment in Arnold Ventures’ comment on the proposed regulations.
“It would look at borrowers who were in some kind of financial distress or who had a zero-dollar payment on an IDR plan, and group all of those borrowers together to determine whether there’s a concentration of borrowers who are going to be in financial distress of some sort,” she said.
McCann said finding a better way to try and identify programs that put students at risk of default while still protecting borrowers is going to be an important conversation for Congress and the department to have going forward.
“We have advanced our policies a lot,” she said. “They’re much more borrower-friendly now. They’re much more responsive to the needs of borrowers and trying to help them avoid default, and we haven’t updated our accountability measures to make sure we’re keeping the higher ed system in check still.”
The cohort default rate was designed to identify colleges that provide little or no value to students, and it has historically been one of the department’s biggest threats, said Robert Kelchen, professor and head of the educational leadership and policy studies department at the University of Tennessee at Knoxville.
In the 1990s, several colleges lost access to federal financial aid, but the rate has caught a smaller number of institutions in recent years.
“It was relevant in the ’90s, but since then, it clearly has not been relevant,” he said.
Some researchers have argued that the rate has been effective in reducing the risk of default. The rate is the only institutional accountability measure based on student outcomes enshrined in federal law; Congress passed an early iteration of the current rate in 1990.
The national cohort default rate has plunged during the pandemic, with 2.3 percent of borrowers who entered repayment from October 2018 to September 2019 defaulting between Oct. 1, 2018, and Sept. 30, 2021, according to the most recent federal data.
Kelchen said he doesn’t expect the income-driven repayment changes to affect colleges and universities, given that few were close to the 30 percent threshold before the pandemic.
“With the availability of private companies to come in and help students get into forbearance, or just to help them navigate income-driven repayment, it’s just really hard to have that share of students default,” he said. “The one wild card to all this is, if repayment begins, are we going to see a whole bunch of defaults right away because students don’t want to repay or they’re having problems navigating the system? But that’s separate from the changes to income-driven repayment.”
The department already is planning to add new accountability measures, which a department spokesperson pointed to in a statement. New gainful-employment regulations, which track students’ debt-to-earnings ratios, are expected this spring, but those rules would only apply to for-profit institutions and nondegree programs at public and nonprofit institutions. The department also is planning to release an annual list of college programs that it says have a low financial value—an accountability measure announced alongside the IDR changes. However, appearing on that list won’t have direct consequences on eligibility to receive federal financial aid.
"The department is committed to building a stronger accountability system in higher education through a multi-pronged effort," the statement said.
Critics of the new IDR plan pointed to the cohort default rate as part of their comments on the regulations.
“Cohort default rates and repayment progress rates on federal loans are important, if imperfect, indicators of whether a particular university (or university program) is preparing its graduates for success in the job market,” wrote the America First Policy Institute, a conservative nonprofit with ties to the Trump administration. “The proposed rule will obliterate the value of these measures by creating a subsidy that ‘prevents’ default by instead effectively recategorizing them as taxpayer losses.”
Adam Looney, an economist who leads the Marriner S. Eccles Institute for Economics and Quantitative Analysis at the University of Utah, wrote that the provision automatically enrolling delinquent borrowers in IDR would “effectively [eliminate] the cohort default rate accountability system.”
That would allow “high-risk institutions to participate in the loan program and enroll more borrowers,” he wrote.
The Biden administration’s planned changes to how student borrowers can repay their loans likely mean that fewer students will default on their debts—rendering a long-standing student debt and accountability measure more meaningless than it already is, experts say.
The cohort default rate “was already very toothless even before we got to this current juncture,” said Brian Denten, an officer with Pew Charitable Trusts’ project on student borrower success.
Higher education experts and think tank analysts have called on the department in the last few years to revise the cohort default rate, which measures the percentage of borrowers at an institution who have defaulted over a three-year period and can lead to institutions losing access to federal financial aid. The nearly three-year pause on student loan payments, several experts argued, provided an opportunity to introduce new accountability measures as part of a broader rethinking on how to hold colleges and universities accountable. The recently proposed changes to income-driven repayment have intensified those calls.
The department is currently reviewing more than 13,500 comments submitted about the changes as it finalizes the regulations. Officials have said they plan to carry out the new plan this year.
Currently, about one-third of borrowers are enrolled in income-driven repayment plans, which calculate a borrower’s monthly payment based on their discretionary income and family size. The Biden administration is proposing to offer borrowers more generous repayment terms, including smaller payments and forgiveness after 10 years for borrowers with less than $12,000 in loans. Additionally, borrowers also wouldn’t see their balances grow as long as they make monthly payments, and those who are at least 75 days behind on their payments will be automatically enrolled in income-driven repayment.
All those changes mean that fewer borrowers will default, which makes it more difficult for the department to hold institutions accountable using the cohort default rate. Currently, an institution risks losing access to federal financial aid if the rate hits 30 percent for three consecutive years or 40 percent in one year.
“We will still see people defaulting, but the likelihood of finding a school where 30 or 40 percent of borrowers in a single year are defaulting seems hard to imagine,” said Clare McCann, a higher education fellow at the philanthropic Arnold Ventures who previously worked in the Education Department during the current administration.
The overhaul also will impact other publicly reported repayment data. The department currently tracks—and publicly reports—the percentage of borrowers at each institution who are or are not making progress on paying back their loans, those who are in forbearance, and those who are delinquent. The meaning of some repayment rate categories will likely change with the new IDR plan, several experts said.
Denten said the planned changes mean that it’s more important to ensure that students are opting in to income-driven repayment—an effort that colleges and universities can play an important role in. He doesn’t expect institutions to change their behavior in response to the cohort default rate absent federal guidance.
“I think as [the cohort default rate] has incentivized some of these bad outcomes towards getting people into deferment and forbearance,” he said, “a rethink of repayment rate and IDR could do the opposite and help kind of steer people into IDR and really incentivize schools to make sure they’re informing borrowers about this, period.”
Denten said that the changes to income-driven repayment and other debt-relief programs give the department a chance to rethink how it approaches accountability and what successful repayment means.
“I think the department wants to be careful about how it’s thinking about implementing a repayment rate going forward, as a lot of folks might actually show up as really not making much progress at all given the current circumstances,” he said.
He would still like the department to track defaults and delinquencies over time in addition to repayment, though Denten said the team at Pew is still thinking through how accountability could work with the IDR plan.
McCann said that Congress and the Education Department need to rethink what institutional accountability looks like when the cohort default rate measure is gone. She recommended a measure focused on nonpayment in Arnold Ventures’ comment on the proposed regulations.
“It would look at borrowers who were in some kind of financial distress or who had a zero-dollar payment on an IDR plan, and group all of those borrowers together to determine whether there’s a concentration of borrowers who are going to be in financial distress of some sort,” she said.
McCann said finding a better way to try and identify programs that put students at risk of default while still protecting borrowers is going to be an important conversation for Congress and the department to have going forward.
“We have advanced our policies a lot,” she said. “They’re much more borrower-friendly now. They’re much more responsive to the needs of borrowers and trying to help them avoid default, and we haven’t updated our accountability measures to make sure we’re keeping the higher ed system in check still.”
The cohort default rate was designed to identify colleges that provide little or no value to students, and it has historically been one of the department’s biggest threats, said Robert Kelchen, professor and head of the educational leadership and policy studies department at the University of Tennessee at Knoxville.
In the 1990s, several colleges lost access to federal financial aid, but the rate has caught a smaller number of institutions in recent years.
“It was relevant in the ’90s, but since then, it clearly has not been relevant,” he said.
Some researchers have argued that the rate has been effective in reducing the risk of default. The rate is the only institutional accountability measure based on student outcomes enshrined in federal law; Congress passed an early iteration of the current rate in 1990.
The national cohort default rate has plunged during the pandemic, with 2.3 percent of borrowers who entered repayment from October 2018 to September 2019 defaulting between Oct. 1, 2018, and Sept. 30, 2021, according to the most recent federal data.
Kelchen said he doesn’t expect the income-driven repayment changes to affect colleges and universities, given that few were close to the 30 percent threshold before the pandemic.
“With the availability of private companies to come in and help students get into forbearance, or just to help them navigate income-driven repayment, it’s just really hard to have that share of students default,” he said. “The one wild card to all this is, if repayment begins, are we going to see a whole bunch of defaults right away because students don’t want to repay or they’re having problems navigating the system? But that’s separate from the changes to income-driven repayment.”
The department already is planning to add new accountability measures, which a department spokesperson pointed to in a statement. New gainful-employment regulations, which track students’ debt-to-earnings ratios, are expected this spring, but those rules would only apply to for-profit institutions and nondegree programs at public and nonprofit institutions. The department also is planning to release an annual list of college programs that it says have a low financial value—an accountability measure announced alongside the IDR changes. However, appearing on that list won’t have direct consequences on eligibility to receive federal financial aid.
"The department is committed to building a stronger accountability system in higher education through a multi-pronged effort," the statement said.
Critics of the new IDR plan pointed to the cohort default rate as part of their comments on the regulations.
“Cohort default rates and repayment progress rates on federal loans are important, if imperfect, indicators of whether a particular university (or university program) is preparing its graduates for success in the job market,” wrote the America First Policy Institute, a conservative nonprofit with ties to the Trump administration. “The proposed rule will obliterate the value of these measures by creating a subsidy that ‘prevents’ default by instead effectively recategorizing them as taxpayer losses.”
Adam Looney, an economist who leads the Marriner S. Eccles Institute for Economics and Quantitative Analysis at the University of Utah, wrote that the provision automatically enrolling delinquent borrowers in IDR would “effectively [eliminate] the cohort default rate accountability system.”
That would allow “high-risk institutions to participate in the loan program and enroll more borrowers,” he wrote.
SoFi Bank, a private student loan lender, says it has lost $300 to $400 million in total revenues because of the three-year pause on federal student loan payments, and it wants that pause to end.
In a lawsuit filed in the federal district court for the District of Columbia, the bank argues that the latest extension of the pause violated federal law, and that a federal judge should order, at minimum, the Education Department to restart payments for those who are not eligible for student loan forgiveness.
SoFi Bank CEO Anthony Noto has criticized the pause and broad-based debt relief.
The administration extended the pause for an eighth time in order to allow time for litigation challenging the one-time debt-relief plan to be resolved. The lawsuit argues that exceeds the authority of the Higher Education Relief Opportunities for Students Act of 2003, which has been used by both the Trump and Biden administration to pause payments.
The bank says the payment pause directly harmed its student loan refinancing business by eliminating the primary benefits of switching a federal loan to a private one. Its business dropped sharply in the early months of the pandemic, according to the lawsuit. The bank estimates it lost about $150 to $200 million in profits in the last three years.
“Every day that the eighth extension of the loan moratorium remains in place, it causes significant, irreparable harm to SoFi,” the lawsuit states. “SoFi projects that if the eighth extension continues in effect through August 2023, it will result in $40 to $45 million in total lost revenues and approximately $25 to $30 million in total lost profits.”
Individuals who own or run private colleges—for-profit and nonprofit—could be on the hook for the cost of unpaid debts owed to the Education Department if their institution fails to operate in a financially responsible way, according to new guidance from the Education Department.
Department officials said the guidance, which requires those who “exert significant control” over private institutions to assume personal liability, is aimed at the riskiest institutions as well as intended to protect students and taxpayers.
Associations representing nonprofit and for-profit private institutions said the guidance was an overreach, exceeding the department’s authority.
The department expects individuals at institutions that annually receive “tens or even hundreds of millions of dollars” in federal student aid and have significant compliance issues to assume personal liability. Other factors that will be considered include lawsuits alleging fraud or consumer harm or executive compensation packages that could significantly affect an institution’s financial health.
The department will make a determination about whether an individual should assume personal liability when their institution’s program participation agreement is up for renewal or if there’s a change in ownership. A program participation agreement is required to receive federal financial aid through Title IV of the Higher Education Act of 1965.
“The Biden-Harris Administration is canceling the loans of more than a million borrowers cheated by for-profit colleges, but too often, the owners and executives of these colleges escape liability,” Under Secretary James Kvaal said in a statement. “Congress gave the department the authority to make college owners and operators personally responsible for these losses in certain circumstances and we are going to use that authority to hold them accountable, defend vulnerable students, protect taxpayer dollars, and deter future risky behavior.”
Nicholas Kent, the chief policy officer at Career Education Colleges and Universities, which represents the for-profit higher education sector, said in a statement that the guidance exceeds the department’s authority.
“The Higher Education Act specifically limits the authority of the department to pierce the corporate veil and hold individuals financially responsible,” Kent said. “This administration proposes to exceed this authority through new regulations and subjective guidance, thereby empowering ideologically driven partisans with the unfettered discretion needed to achieve their goal of dismantling private career schools while limiting students’ ability to choose the educational setting that best fits their life circumstances.”
Clare McCann, a higher education fellow at the philanthropic Arnold Ventures, who previously worked in the Education Department during the current administration, said the new guidance builds off a March 2022 decision to require certain owners to sign the program participation agreement.
She said it’s likely the department’s use of this authority would likely depend on how risky the institution is and how much federal financial aid is at stake.
“The department is clear in the list of factors that this will be a relatively uncommon practice,” she said.
McCann said that ensuring that individuals involved with high-risk institutions are personally liable has “huge potential to deter the high-risk behaviors we saw with ITT Technical Institute.”
The department found that the for-profit college chain, which closed in 2016, misled students about their job prospects after graduation and the ability to transfer credits to other institutions. Officials in August decided to forgive the debts of all former ITT students, which totaled $3.9 billion.
Barbara Mistick, president of the National Association of Independent Colleges and Universities, said in a statement that while the guidance is intended to target bad actors, it’s “a drastic overreach that could severely impact private, nonprofit colleges and universities.”
“These institutions are community anchors, essential employers, and key to the nation’s recovery from the pandemic and this overreach could have serious and harmful unintended consequences for private, nonprofit higher education,” Mistick said.
Jon Fansmith, senior vice president for government relations at the American Council on Education, said that the federal statute doesn’t allow the department to exempt nonprofits.
“Frankly, it’s probably not worth the department’s time to go after, say, a small tuition-dependent nonprofit that is looking to close because of declining enrollment,” Fansmith said. “It doesn’t serve anyone’s purposes there. Where it serves their purposes is the large institutions that have been heavily involved in Title IV and have some systemic failures.”
Fansmith said that the guidance was unexpected but not surprising.
“It very much reflects a long-running concern that we’ve seen time and time again with particularly large chains of higher education providers that have gone under and left taxpayers holding the bill,” he said. “When you look at that, a lot of individuals who were involved in running those institutions walked away very well-off financially.”
The department has had the authority to hold individuals personally liable but didn’t have a practice of doing so. The guidance clarifies the circumstances under which the department would use that authority, Fansmith said.
Fansmith said that the new guidance shows that the department is gearing up to exercise its authority, and he expects to see a few cases in the near future.
“You should assume that they didn’t do that by accident,” he said.
He said he expects to see the department, in the near future, reaching out to owners and chief executives of a few institutions to require that personal liability. He added that there are few institutions that would meet the criteria outlined in the guidance.
“It’s also not hard to think they’re probably aware of some institutions that they’re concerned about that helped inform the criteria,” he said.
Requiring personal liability should be seen as a warning for institutions, Fansmith said.
“It says, ‘We are concerned about the health of your institution, and we want to make it clear that if the institution fails, you will have liability for it,’” he said. “But again, it also allows the possibility that somebody could see that and the institution may survive, or it may never come into effect.”
Individuals who own or run private colleges—for-profit and nonprofit—could be on the hook for the cost of unpaid debts owed to the Education Department if their institution fails to operate in a financially responsible way, according to new guidance from the Education Department.
Department officials said the guidance, which requires those who “exert significant control” over private institutions to assume personal liability, is aimed at the riskiest institutions as well as intended to protect students and taxpayers.
Associations representing nonprofit and for-profit private institutions said the guidance was an overreach, exceeding the department’s authority.
The department expects individuals at institutions that annually receive “tens or even hundreds of millions of dollars” in federal student aid and have significant compliance issues to assume personal liability. Other factors that will be considered include lawsuits alleging fraud or consumer harm or executive compensation packages that could significantly affect an institution’s financial health.
The department will make a determination about whether an individual should assume personal liability when their institution’s program participation agreement is up for renewal or if there’s a change in ownership. A program participation agreement is required to receive federal financial aid through Title IV of the Higher Education Act of 1965.
“The Biden-Harris Administration is canceling the loans of more than a million borrowers cheated by for-profit colleges, but too often, the owners and executives of these colleges escape liability,” Under Secretary James Kvaal said in a statement. “Congress gave the department the authority to make college owners and operators personally responsible for these losses in certain circumstances and we are going to use that authority to hold them accountable, defend vulnerable students, protect taxpayer dollars, and deter future risky behavior.”
Nicholas Kent, the chief policy officer at Career Education Colleges and Universities, which represents the for-profit higher education sector, said in a statement that the guidance exceeds the department’s authority.
“The Higher Education Act specifically limits the authority of the department to pierce the corporate veil and hold individuals financially responsible,” Kent said. “This administration proposes to exceed this authority through new regulations and subjective guidance, thereby empowering ideologically driven partisans with the unfettered discretion needed to achieve their goal of dismantling private career schools while limiting students’ ability to choose the educational setting that best fits their life circumstances.”
Clare McCann, a higher education fellow at the philanthropic Arnold Ventures, who previously worked in the Education Department during the current administration, said the new guidance builds off a March 2022 decision to require certain owners to sign the program participation agreement.
She said it’s likely the department’s use of this authority would likely depend on how risky the institution is and how much federal financial aid is at stake.
“The department is clear in the list of factors that this will be a relatively uncommon practice,” she said.
McCann said that ensuring that individuals involved with high-risk institutions are personally liable has “huge potential to deter the high-risk behaviors we saw with ITT Technical Institute.”
The department found that the for-profit college chain, which closed in 2016, misled students about their job prospects after graduation and the ability to transfer credits to other institutions. Officials in August decided to forgive the debts of all former ITT students, which totaled $3.9 billion.
Barbara Mistick, president of the National Association of Independent Colleges and Universities, said in a statement that while the guidance is intended to target bad actors, it’s “a drastic overreach that could severely impact private, nonprofit colleges and universities.”
“These institutions are community anchors, essential employers, and key to the nation’s recovery from the pandemic and this overreach could have serious and harmful unintended consequences for private, nonprofit higher education,” Mistick said.
Jon Fansmith, senior vice president for government relations at the American Council on Education, said that the federal statute doesn’t allow the department to exempt nonprofits.
“Frankly, it’s probably not worth the department’s time to go after, say, a small tuition-dependent nonprofit that is looking to close because of declining enrollment,” Fansmith said. “It doesn’t serve anyone’s purposes there. Where it serves their purposes is the large institutions that have been heavily involved in Title IV and have some systemic failures.”
Fansmith said that the guidance was unexpected but not surprising.
“It very much reflects a long-running concern that we’ve seen time and time again with particularly large chains of higher education providers that have gone under and left taxpayers holding the bill,” he said. “When you look at that, a lot of individuals who were involved in running those institutions walked away very well-off financially.”
The department has had the authority to hold individuals personally liable but didn’t have a practice of doing so. The guidance clarifies the circumstances under which the department would use that authority, Fansmith said.
Fansmith said that the new guidance shows that the department is gearing up to exercise its authority, and he expects to see a few cases in the near future.
“You should assume that they didn’t do that by accident,” he said.
He said he expects to see the department, in the near future, reaching out to owners and chief executives of a few institutions to require that personal liability. He added that there are few institutions that would meet the criteria outlined in the guidance.
“It’s also not hard to think they’re probably aware of some institutions that they’re concerned about that helped inform the criteria,” he said.
Requiring personal liability should be seen as a warning for institutions, Fansmith said.
“It says, ‘We are concerned about the health of your institution, and we want to make it clear that if the institution fails, you will have liability for it,’” he said. “But again, it also allows the possibility that somebody could see that and the institution may survive, or it may never come into effect.”
The complaint processes at seven of the agencies charged with monitoring the quality of higher education institutions and holding them accountable are burdensome and seem designed to protect colleges, a new brief from the think tank New America argues.
None of the policies reviewed in the brief meet New America’s criteria for an effective complaint process, the brief concluded. Accreditors, in turn, say they take complaints seriously and that the report doesn’t fully reflect their processes. Complaints typically come from students or employees who think their institution has violated an accreditation standard or policy.
Edward Conroy, a senior adviser with New America’s education policy team, reviewed the policies for the seven formerly regional accreditors, such as the Midwest’s Higher Learning Commission and the Middle States Commission on Higher Education. Among the seven, he ranked the policy for Southern Association of College and Schools Commission on Colleges (SACSCOC) as the most burdensome. SACSCOC requires complaints in writing, professional transcripts that have been notarized for audio recordings and two copies of all supporting documents, per the brief. The Western Association of Schools and Colleges Senior College and University Commission had the easiest-to-navigate process, according to the brief.
“None of them are great, and all seem to have put processes in place to make it very difficult for the average person to easily submit a complaint about their institution, and that seems less than ideal for agencies that are meant to be ensuring the quality of higher education,” Conroy said.
A member of the National Advisory Committee on Institutional Quality and Integrity (NACIQI), which makes recommendations to the Education Department about accrediting agencies, questioned SACSCOC president Belle Wheelan last year about the agency’s policy. Department officials required SACSCOC to review its complaint process as a condition of the agency’s renewal of federal recognition.
Wheelan said that the agency’s policy, in place since 1999, has been revised several times since and has not been an issue for the department or NACIQI until this most recent recognition process. Colleges and universities have to be accredited by an Education Department–recognized accreditor in order to disburse federal student aid.
The accreditors reviewed for the report oversee about 85 percent of the country’s colleges and universities, according to the brief.
Some of the accreditors highlighted in the report took issue with the document, including its title—“Higher Education Accreditors Don’t Want to Hear Your Complaints.”
“I think it’s the headline and some of the ways that the report presents things as something where we’re trying to suppress complaints or hide problems, and that for us really couldn’t be further from the truth,” said Tracey Schneider, senior vice president for legal affairs and general counsel for the Middle States Commission on Higher Education.
Middle States is one of four regional accreditors whose recognition status is up for renewal and who are set to appear before NACIQI next week at the committee’s winter meeting. The commission, which received 275 complaints from 2018 to 2022—half of which were from students—is currently reviewing its complaint policy as part of its normal policy-review process. That review will include several of the issues raised in the New America report.
Other accreditors said that they appreciated the report’s suggestions, which could serve as a starting point for reviewing complaint processes.
Conroy judged the policies by a set of principles adapted from the Institute for College Access and Success for designing processes that serve students. The criteria included that processes should be easy to understand, with simple tools to submit complaints; agencies should monitor complaints for problematic patterns; and processes should operate independently of the institutions overseen.
He looked specifically at whether complaints could be submitted online, whether the agency required the complainant to identify a specific accreditation standard that might have been violated and whether anonymous complaints were allowed, among other questions.
Most did have an online system for complaints, but none allowed complainants to be anonymous.
“Differing standards, combined with the removal of regional boundaries for accreditors, sets up the perfect conditions for a race to the bottom in higher education oversight,” Conroy wrote in the report. “A review of the complaints processes used by the seven regional accreditors reveals no common standard in how they handle complaints.”
Conroy called for agencies to release more data about the number of complaints they receive and how they are resolved. Currently, the accreditors are not required to release details on the complaints they receive, he said.
The Education Department requires accrediting agencies to review any complaint it receives related to the agency’s standards or procedures.
“It’s not sufficient to just say, ‘We have a complaint process,’” Conroy said. “It needs to be an accessible, easy-to-understand and easy-to-navigate process in order to be considered effective.”
Complaints, Conroy said in an interview, are a way for accreditors to get information about what’s happening at an institution in between reviews, which are typically every 10 years.
“If you’ve created a system that makes it very difficult to complain, so that only the most determined people get through this obstacle course of bureaucracy, then you’re going to artificially reduce the number of complaints that get to you,” he said. “As a result, you might be, as an accreditor, missing really important information that can help you do your job better to make sure that institutions are providing students with a quality education.”
Accreditors said in interviews and statements that complaints are just one way that they hear about potential issues at institutions and they have other avenues to raise issues with an institution if a person wants to remain anonymous. Representatives also said they don’t only interact with institutions when it comes time to reaffirm their accreditation status—institutions have to file annual or interim reports. Accreditors also can initiate an inquiry whenever they receive information, whether that’s through an anonymous tip or a news article.
Conroy said that the requirement for individuals to cite an accreditation standard in the complaint was “very unreasonable,” given the complexity of the standards.
Lawrence Schall, president of the New England Commission of Higher Education, said he’s found that the standard requirement is not a difficult one for complainants to fulfill.
“We don’t ask people to go deep into the issue, which means they don’t have to pore through our booklet,” he said. “Is it a finance issue? Is it a governance issue? Is it a student issue? It’s just sort of high level, and they just check a box and that’s pretty easy to do.”
He added that the commission doesn’t reject complaints if they list the wrong standard.
“We think it’s an important part of what we do,” he said.
Schall said his agency has received about 100 complaints since 2020, when he took over as president. The agency oversees about 200 institutions.
“We have a very strong complaint policy,” he said. “It works. We get lots of complaints.”
The complaint processes at seven of the agencies charged with monitoring the quality of higher education institutions and holding them accountable are burdensome and seem designed to protect colleges, a new brief from the think tank New America argues.
None of the policies reviewed in the brief meet New America’s criteria for an effective complaint process, the brief concluded. Accreditors, in turn, say they take complaints seriously and that the report doesn’t fully reflect their processes. Complaints typically come from students or employees who think their institution has violated an accreditation standard or policy.
Edward Conroy, a senior adviser with New America’s education policy team, reviewed the policies for the seven formerly regional accreditors, such as the Midwest’s Higher Learning Commission and the Middle States Commission on Higher Education. Among the seven, he ranked the policy for Southern Association of College and Schools Commission on Colleges (SACSCOC) as the most burdensome. SACSCOC requires complaints in writing, professional transcripts that have been notarized for audio recordings and two copies of all supporting documents, per the brief. The Western Association of Schools and Colleges Senior College and University Commission had the easiest-to-navigate process, according to the brief.
“None of them are great, and all seem to have put processes in place to make it very difficult for the average person to easily submit a complaint about their institution, and that seems less than ideal for agencies that are meant to be ensuring the quality of higher education,” Conroy said.
A member of the National Advisory Committee on Institutional Quality and Integrity (NACIQI), which makes recommendations to the Education Department about accrediting agencies, questioned SACSCOC president Belle Wheelan last year about the agency’s policy. Department officials required SACSCOC to review its complaint process as a condition of the agency’s renewal of federal recognition.
Wheelan said that the agency’s policy, in place since 1999, has been revised several times since and has not been an issue for the department or NACIQI until this most recent recognition process. Colleges and universities have to be accredited by an Education Department–recognized accreditor in order to disburse federal student aid.
The accreditors reviewed for the report oversee about 85 percent of the country’s colleges and universities, according to the brief.
Some of the accreditors highlighted in the report took issue with the document, including its title—“Higher Education Accreditors Don’t Want to Hear Your Complaints.”
“I think it’s the headline and some of the ways that the report presents things as something where we’re trying to suppress complaints or hide problems, and that for us really couldn’t be further from the truth,” said Tracey Schneider, senior vice president for legal affairs and general counsel for the Middle States Commission on Higher Education.
Middle States is one of four regional accreditors whose recognition status is up for renewal and who are set to appear before NACIQI next week at the committee’s winter meeting. The commission, which received 275 complaints from 2018 to 2022—half of which were from students—is currently reviewing its complaint policy as part of its normal policy-review process. That review will include several of the issues raised in the New America report.
Other accreditors said that they appreciated the report’s suggestions, which could serve as a starting point for reviewing complaint processes.
Conroy judged the policies by a set of principles adapted from the Institute for College Access and Success for designing processes that serve students. The criteria included that processes should be easy to understand, with simple tools to submit complaints; agencies should monitor complaints for problematic patterns; and processes should operate independently of the institutions overseen.
He looked specifically at whether complaints could be submitted online, whether the agency required the complainant to identify a specific accreditation standard that might have been violated and whether anonymous complaints were allowed, among other questions.
Most did have an online system for complaints, but none allowed complainants to be anonymous.
“Differing standards, combined with the removal of regional boundaries for accreditors, sets up the perfect conditions for a race to the bottom in higher education oversight,” Conroy wrote in the report. “A review of the complaints processes used by the seven regional accreditors reveals no common standard in how they handle complaints.”
Conroy called for agencies to release more data about the number of complaints they receive and how they are resolved. Currently, the accreditors are not required to release details on the complaints they receive, he said.
The Education Department requires accrediting agencies to review any complaint it receives related to the agency’s standards or procedures.
“It’s not sufficient to just say, ‘We have a complaint process,’” Conroy said. “It needs to be an accessible, easy-to-understand and easy-to-navigate process in order to be considered effective.”
Complaints, Conroy said in an interview, are a way for accreditors to get information about what’s happening at an institution in between reviews, which are typically every 10 years.
“If you’ve created a system that makes it very difficult to complain, so that only the most determined people get through this obstacle course of bureaucracy, then you’re going to artificially reduce the number of complaints that get to you,” he said. “As a result, you might be, as an accreditor, missing really important information that can help you do your job better to make sure that institutions are providing students with a quality education.”
Accreditors said in interviews and statements that complaints are just one way that they hear about potential issues at institutions and they have other avenues to raise issues with an institution if a person wants to remain anonymous. Representatives also said they don’t only interact with institutions when it comes time to reaffirm their accreditation status—institutions have to file annual or interim reports. Accreditors also can initiate an inquiry whenever they receive information, whether that’s through an anonymous tip or a news article.
Conroy said that the requirement for individuals to cite an accreditation standard in the complaint was “very unreasonable,” given the complexity of the standards.
Lawrence Schall, president of the New England Commission of Higher Education, said he’s found that the standard requirement is not a difficult one for complainants to fulfill.
“We don’t ask people to go deep into the issue, which means they don’t have to pore through our booklet,” he said. “Is it a finance issue? Is it a governance issue? Is it a student issue? It’s just sort of high level, and they just check a box and that’s pretty easy to do.”
He added that the commission doesn’t reject complaints if they list the wrong standard.
“We think it’s an important part of what we do,” he said.
Schall said his agency has received about 100 complaints since 2020, when he took over as president. The agency oversees about 200 institutions.
“We have a very strong complaint policy,” he said. “It works. We get lots of complaints.”
The Education Department wants to roll back part of the so-called free inquiry rule, which required public colleges and universities to uphold the First Amendment, among other provisions. However, the department says it isn’t changing the actual requirements of the First Amendment in higher education.
In particular, the department is proposing to eliminate the section that barred higher education institutions from denying faith-based student organizations any rights, benefits and privileges afforded to nonreligious student groups because of their “beliefs, practices, policies, speech, membership standards or leadership standards.” Colleges found in violation of that prohibition would lose access to grant programs administered directly by the department and indirectly through the states—but not federal financial aid.
Critics have said that the regulations could be interpreted as requiring higher education institutions to allow religious student groups to discriminate against vulnerable and marginalized students, such as LGBTQ students, while proponents said the rule provides needed protections. The Trump administration, which issued the final rule in September 2020, said the rule would ensure that religious organizations as well as their student members fully retain their right to free exercise of religion.
After more than a year of reviewing the free inquiry rule, administration officials concluded that the student organization provision is “unduly burdensome” for the department, not necessary to protect First Amendment rights on college campuses, and has caused confusion for institutions.
“We have not seen evidence that the regulation has provided meaningfully increased protection for religious student organizations beyond the robust First Amendment protections that already exist, much less that it has been necessary to ensure they are able to organize and operate on campus,” officials wrote in a notice for proposed rule making that will accept comments through March 24.
Department officials repeatedly noted in the proposed regulations that rescinding the rule wouldn’t affect their commitment to religious freedom.
“Additionally, we continue to believe institutions generally make a good-faith effort to abide by the First Amendment irrespective of the implementation of the 2020 final rule, and we assume that compliance with the First Amendment has not generated additional burden for [institutions of higher education],” officials wrote.
The department also is seeking broader input on the 2020 rule. In a request for information released Wednesday, department officials said they want to hear about how the rule has affected free speech–related decisions at higher ed institutions—a move that some experts say could lead to scrapping the entire rule.
Joe Cohn, legislative and policy director at the Foundation for Individual Rights and Expression, said it’s too soon to gauge the impact on the new regulations.
“It would certainly be a mistake to judge a limited data set as proof of an effectiveness on this kind of timeline, especially when final court judgments are what trigger the department to take further action,” he said. “We all know the wheels of justice turn slowly.”
Americans United for Separation of Church and State, which sued the Trump administration on behalf of the Secular Student Alliance to challenge the rule, praised the decision to rescind part of the rule.
“Rescinding the harmful Trump rule means students won’t be forced to subsidize clubs that discriminate against them,” Americans United president Rachel Laser said in a statement. “It also means colleges won’t be forced to choose between protecting students and losing federal funding, or allowing discrimination against students in order to keep federal financial assistance.”
The organization’s lawsuit has been on hold while the Biden administration reviewed the rule, Americans United said in a news release.
Frederick Hess, director of education policy studies for the American Enterprise Institute, a right-leaning think tank, said it was a relief that the Biden administration didn’t rescind the entire rule.
“It is, however, disconcerting to see Biden officials rolling back protections for communities of faith just days after the president announced a governmentwide effort to promote diversity and inclusion,” he said. “As usual, it’s difficult to know precisely what this will mean until we see it applied in practice. But given the concerns about free inquiry on campus, and the frequency with which those relate to faith-related issues of gender and values, this seems a big step in the wrong direction.”
Ryan Jayne, senior policy counsel for the Freedom From Religion Foundation, said the current regulations force institutions to exempt religious student groups from nondiscrimination rules and other campus policies.
Religious student groups “should be required to follow the same rules as secular student groups, and this proposed rule attempts to restore that balance,” Jayne said. “Our only disappointment is that the administration took two years to issue this proposed rule.”
The Trump administration wrote the Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities regulations to in part protect the First Amendment rights of students and student organizations, officials said at the time. The regulations outlined how religious institutions could show that they’re exempt from Title IX of the Education Amendments of 1972’s rules against sex-based discrimination, and they also created the new conditions for grant funding.
The conditions included the religious student organization provision that the administration now wants to rescind. Public colleges and universities also would have to comply with the First Amendment, while private institutions would have to comply with their own policies on freedom of speech in order to remain eligible for department grant funding. The department would only find institutions in violation if a court found that they had violated the First Amendment or institutional policies, under the final rule.
While some of the grant conditions relied on a court judgment, determining whether a college violated the student group–related prohibition was left up to the department’s discretion. Officials concluded in 2020 that it was “a discrete issue that the department may easily investigate.” Biden administration officials disagreed with that conclusion in the notice.
“The First Amendment is a complex area of law with an intricate body of relevant case law,” officials wrote in the notice. “A proper review of an alleged violation could require the department to devote extensive resources to investigate the allegation given the nature of these cases.”
The department has not received any complaints alleging violations of the free inquiry rule as of Wednesday, according to the notice.
Officials did consider revising the regulations to clarify that applying nondiscrimination policies to religious student organizations would be allowed. However, that change still would’ve meant the department would have been responsible for investigating alleged violations, which could become “overly burdensome.”
“Instead, we believe the department should return to our historical role in which we have not adjudicated alleged violations of the First Amendment,” officials wrote. “Courts are better suited to handle such matters.”
The Education Department’s Office for Civil Rights has ramped up investigations in the last year as more individuals and organizations have filed complaints about disability, sex or pregnancy discrimination; campus antisemitism; and programs or scholarships available to only one gender or minority group, among other allegations.
The office received 18,804 complaints—a record—during the last fiscal year, from Oct. 1, 2021, to Sept. 30, 2022, about discrimination in K-12 and higher education, according to data provided by the Education Department. The previous record was set in fiscal year 2016, when the agency received more than 16,700 complaints. Many of the complaints involved disabilities.
The department did not provide more information about the complaints, including how many related to higher education, and it declined to comment further on the numbers. Instead, a spokesman referred Inside Higher Ed to Assistant Secretary for Civil Rights Catherine Lhamon’s comments to The New York Times, which first reported on the increase with a focus on the K-12 complaints.
“It reflects the confidence in the Office for Civil Rights as a place to seek redress,” Lhamon told the paper. “At the same time, the scope and volume of harm that we’re asking our babies to navigate is astronomical.”
Lhamon led the Office for Civil Rights during the second term of the Obama administration and returned to the same role in October 2021. Biden administration officials have reversed many of the Trump-era changes to the office’s operations and worked to boost staffing levels, which fell under Trump.
Tracey E. Vitchers, executive director of It’s On Us, said the increase in complaints shows that students have trust in the Biden administration to respond to their allegations. Addressing the changes at OCR under former president Trump was one of President Biden’s campaign promises, she said.
“We’ve really seen the Biden administration live up to that campaign promise in working to get—not just the department holistically—but also the Office for Civil Rights back up to speed,” she said. “Student civil rights need to be upheld, and you need staff to help uphold them.”
The Biden administration requested $30 million more for the agency during the last budget cycle and planned to add 92 full-time employees. Congress ended up appropriating $4.5 million, bringing the office’s budget to $140 million. The office said in its annual report that addressing the rising number of complaints will be a challenge for OCR.
Vitchers said Lhamon has brought back a number of Obama-era practices to provide more transparency into OCR’s investigations. That includes publishing more information about case resolutions and open investigations.
“That transparency is important, because students have a right to know if their school has been found by the Department of Education Office for Civil Rights for violating their peers’ civil rights,” she said.
The Office for Civil Rights doesn’t make complaints public or comment on pending investigations, but it does keep a public list of open investigations. Opening an investigation doesn’t mean that OCR finds the complaint credible, just that it met the few jurisdictional requirements. The office’s jurisdiction includes federally funded education programs or activities.
Most of the office’s work is driven by the complaints, but the agency can open investigations on its own and use other tools to bring attention to its priorities. Recently, the office has made it clear, through guidance and case resolutions, that pregnancy discrimination will be a focus, said Howard Kellam, a former regional attorney at OCR and current consultant.
The department resolved an investigation last month into pregnancy discrimination at Troy University in Alabama. Investigators found that the university didn’t have clear policies on how to accommodate a student’s pregnancy. Troy University agreed to provide faculty and staff with training on the rights of pregnant students. OCR resolved at least two other similar investigations in 2022 at Salt Lake Community College and Bryant & Stratton College.
Nearly half of the 890 higher ed–related investigations opened in 2022 and still pending by the end of the year were in response to disability discrimination complaints. About one-third of the investigations related to discrimination under Title IX of the Education Amendments of 1972, while cases related to discrimination under Title VI of the Civil Rights Act of 1964 comprise about a quarter. Title IX protects students from sex or gender discrimination, while Title VI protects students from discrimination based on race, color or national origin.
Those Title VI complaints include a number that allege antisemitic harassment and discrimination, reflecting the recent rise in campus antisemitism.
Kenneth Marcus, who led the Office for Civil Rights during the Trump administration and founded the Louis D. Brandeis Center for Human Rights Under Law, has filed several of those complaints on behalf of students.
Marcus said the change in administrations is not the whole story behind the increase in complaints, adding that he heard from conservative groups during his tenure that they were more likely to file complaints during Republican administrations.
“Since there are more progressives than conservatives in this space, the shift could yield a net increase in complaints, including legally dubious charges, when Democrats govern,” he said. “However, this is almost certainly not the whole story. The magnitude of the increase in filings suggests broader social phenomena, which may include the long-term impact of COVID and COVID school closures.”
He added that the COVID pandemic has had a coarsening and polarizing effect on people’s attitudes and worsened social norms.
“I think it has led to a situation in which people are often responding to one another in ways that are less healthy than before COVID,” he said. “Universities have not been responding well to that. I think they’re overwhelmed, to some extent.”
He’s glad to see the Office for Civil Rights opening investigations when warranted, but the challenge, he said, will be to close those cases.
“It’s one thing to open the case, and it’s another thing to figure out what they need to do and then to do it,” he said. “That will be the big question. Now that they’re looking at all these cases, are they going to be able to finish them?
The office resolved at least 70 higher ed investigations in 2022, most of which were about disability discrimination, according to the agency’s resolution database.
Some complainants publicly share their OCR complaints, which along with the public resolution agreements offer a glimpse into the office’s activities during the Biden administration. The office will release more information about the complaints it received and its investigations in its annual report, which will be published in July.
Jamie Axelrod, the director of disability resources at Northern Arizona University and past president of the Association on Higher Education and Disability, said he isn’t surprised that the Office for Civil Rights would be receiving more complaints, especially disability claims, since the pandemic began.
For many students with disabilities, the pandemic, disruptions in classes and online education highlighted and worsened inequities in their access to higher education, and more students have started to speak out and advocate for their universities to do more to address their varying needs.
Axelrod said students are more likely to raise concerns about an institution’s denial of an accommodation request. Additionally, those requests have become more complex and have involved modifying course-specific policies, which raises more questions about whether the accommodations amount to a fundamental alteration of the course. Federal law doesn’t require institutions to make adjustments that would result in a fundamental alteration of a program or impose an undue burden.
A Florida Gateway Community College student filed a complaint after his college required him to use Honorlock, an online proctoring software, for tests and quizzes during the fall 2020 semester. The software flagged certain behaviors related to his disabilities as cheating, and he failed a quiz. The student made numerous requests to use an alternative option, but was denied, and he ended up withdrawing from the fall semester. OCR found the college failed to “engage in the interactive process to determine reasonable academic adjustments” and violated federal civil rights laws. The college agreed to provide training on federal laws to staff who evaluate students for disability-related accommodation requests.
Typically, disability-based discrimination claims make up the majority of the caseload at the Office for Civil Rights. The office investigates a broad range of disability-based discrimination claims, including allegations that an institution denied students access to programs or services or rejected their accommodation requests. This also includes complaints about the accessibility of education technology. The office has a team devoted to the issue, and several of the resolved cases from 2022 related to technology access for students with disabilities.
The University of Arkansas system agreed to adopt a digital accessibility standard in response to a compliance review that found several possible concerns, including links that weren’t labeled enough to provide access to students with vision disabilities who use screen readers.
In another review, the team found that some parts of Norfolk State University’s website and online programs were not accessible to people with disabilities and worked with the institution to address those problems. Norfolk State agreed to update its digital accessibility testing protocols in response.
The resolution agreements, which the office says are specific to each investigation or review and not a formal statement of policy, can illuminate best practices and show what the office is looking at, Axelrod said. Lately, he’s seen that focus on access to technology.
“Usually, by the time OCR gets to that kind of stuff, it’s been an issue for a while,” he said.
More broadly, he’s seen the office more actively engaged during the Biden administration, which he said was nice to see.
“I think that OCR plays a vital role,” he said. “We talk about investigations, but I think it’s good to note that OCR provides technical assistance to schools. That’s really an invaluable service.”
Several of the investigations opened last year stemmed from complaints that students were subject to antisemitic harassment and discrimination in part because of their support of Israel.
At the University of Vermont, students said they faced online harassment from a teaching assistant who talked about wanting to lower Zionist students’ grades and that a campus group excluded Zionists from participating. The complaint also included allegations that the campus Hillel building was vandalized. The university said last year when the investigation was opened that it looked forward to responding to OCR.
The office opened at least eight investigations last year into national origin discrimination involving religion on college campuses. OCR also has opened a number of Title VI–related investigations into complaints about racial harassment and retaliation, among others.
The Office for Civil Rights is currently investigating complaints filed by the Brandeis Center regarding the University of Vermont, the University of Southern California and Brooklyn College, among others—none of which have been resolved yet. Marcus said he’s not aware of any antisemitism cases involving higher education that have been resolved during the Biden administration.
Jewish college students have reported an increase in campus antisemitism in recent years.
“I would say [it’s] a combination of ideological polarization with political extremes on both sides gaining traction, including through use of newer technologies, together with some of the societal coarseness that’s been worsened by COVID and campus closures,” Marcus said of the increase. “The situation in the Middle East has tended to feed into this with campus protests, cultures sometimes latching on to some of the antisemitic attitudes that have been floating around. At the same time, the extreme right has gained traction, especially through use of social media and websites.”
Although the Office for Civil Rights hasn’t resolved a recent investigation into campus antisemitism, the office has acknowledged the issue in public statements and is planning to update the regulations for Title VI as part of an effort to combat antisemitism.
“OCR doesn’t always express itself with a level of clarity that we might like, but I think that in recent months, it has taken a number of measures to demonstrate to institutions that campus antisemitism remains a significant priority,” Marcus said.
That includes mentioning a “distressing rise in reports of antisemitism on campuses across the country” in a news release and releasing fact sheets on Title VI protections from discrimination, including clarifying how the law protects students who are perceived to be from a particular religious group.
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