Millions of Americans could be affected by ongoing inside-the-beltway debates over the exact definitions of wonky terms such as ”credit hour” or “gainful employment,” according to two veteran Washington policy insiders.
By changing the legal definitions of such terms, legislators and bureaucrats can for example, reduce the regulation of for-profit colleges or tighten rules governing student loan forgiveness, explained David Cleary, chief of staff to Republican Sen. Lamar Alexander of Tennessee, and Spiros Protopsaltis, an associate professor at George Mason University who worked in the Education Department under President Barack Obama.
Speaking at a January 2019 Education Writers Association seminar, they predicted that there will be plenty of action for journalists to cover on these issues this year. Cleary announced that Sen. Alexander, who chairs the Senate education committee, hopes this year to rewrite and reauthorize the Higher Education Act, the sweeping federal law that governs most of higher education.
Cleary said Sen. Alexander and the Trump administration want to free the sector for innovation.
“We need to weed the garden every once in a while,” he said.
From the other side of the aisle, Protopsaltis warned that many of the contemplated changes seemed to him to be ill-considered political reactions that could reduce student protections. The Trump administration doesn’t seem to have any proactive policy agenda beyond “a deregulatory effort that seeks to undo everything we did,” he said.
Cleary and Protopsaltis said the 2018 election created a political environment in which at least three higher education issues are likely to make headlines.
One set of in-the-weeds changes that is already making news is the Trump administration’s effort to roll back regulations of for-profit colleges, which serve more than 1.3 million Americans.
The Obama administration imposed rules that denied federal financial aid to vocational or career-oriented higher education programs — a field that has tended to be dominated by for-profit colleges — that failed to prepare students for “gainful employment in a recognized occupation.”
Under the “gainful employment” rules, career programs would get federal financial aid funding only if they provided data showing that, for example, alumni’s student loan payments ran to less than 20 percent of their discretionary income.
Cleary complained that the the Obama rule used “arbitrary numbers” to measure success, and was unfairly aimed at for-profit colleges.
“It was clearly designed to impact harmfully schools that they didn’t like,” he said. Cleary also called the gainful employment rule a “fraud,” charging that the Obama administration overstepped its authority by creating the rule through regulation rather than legislation.
Protopsaltis countered that those standards are reasonable and that disproportionate numbers of students in for-profit colleges have struggled to find jobs and repay their loans. For-profit programs have been “riddled with poor student outcomes and predatory behavior,” he said.
One recent study, for example, found that 43 percent of students at for-profit colleges default on their student loans within 12 years — a rate four times higher than the average for other kinds of schools.
The fate of gainful employment regulations are in flux. Secretary of Education Betsy DeVos has said she wants to rescind and rewrite the regulation. In the meantime, President Trump issued an executive order telling the Education Department to give students and families access to “gainful” data (such as alumni student debt levels and student loan default and repayment rates) for all college programs – not just career-oriented ones – by posting it on the College Scorecard website. That way, presumably, students and parents can decide for themselves whether a particular program is a good or bad investment.
Distance or online learning
The Republican effort to overhaul rules governing distance education, which includes online courses, is also likely to have a big impact. About one-third of all college students – more than 6.6 million – are now taking at least one online course. In light of the growing use of artificial intelligence and computerized instructional programs, the Education Department is considering changing requirements that instructors have, for example, “regular and substantive” interactions with students, and changing the definition of a “credit hour” that can be reimbursed by federal student aid.
Education today looks different than it did when, for example, Congress first passed the Higher Education Act in 1965, or even when the law was last updated in 2008. Students are now surrounded by new technologies and better-quality online resources. Not all students need heavy doses of traditional human instruction, Cleary said.
“We’ve got to modernize higher education, the credit hour, all these phrases,” Cleary said.
Protopsaltis said the current definitions have partly been used to make sure online programs provide adequate instruction. The current regulations were “wisely” put in place to prevent schools from collecting federal aid while cutting corners on quality. At stake, he added, is more than $150 billion a year in federal support.
“There’s good innovation and bad innovation, and each one of these things that they’re trying to dismantle has a very good reason why it’s here,” Protopsaltis said.
Debate over these changes are expected to continue to make news as, in the spring of 2019, a committee appointed by the Education Department drafted rules making it easier for online programs to become accredited. The department’s next step will be to publish a notice of the proposed changes in the Federal Registry to solicit feedback from the public. After considering the feedback, the department is on track to issue a final rule by 2020.
How the higher education policy sausage gets made
In addition to what the policies should be, there’s an inside-the-beltway battle over how higher ed rules should get made. DeVos and other Republicans have argued that many of the Obama-era rules they are trying to scale back were oversteps of federal authority.
Congress — not unelected bureaucrats — should be the ones making such sweeping rules, say Republicans such as Cleary.
Protopsaltis said the Obama administration began issuing rules on its own after Republicans won a majority in the House in 2011, making it more difficult to pass legislation. While he said regulatory rulemaking isn’t necessarily bad, he also said the previous administration resorted to that option sooner than it should have.
“The Obama administration should have tried to work harder to develop closer relationships with the Hill,” he said.
The notion that an executive branch agency should take action simply because Congress hasn’t is “exactly what’s wrong with our system,” Cleary said.
“The president isn’t supposed to create the law,” he said. “The legislative branch legislates.”
Despite these disagreements, and deep partisan divisions that have stymied other kinds of legislation, education appears to be one area in which Congress could take action on in 2019, however.
Sen. Alexander, who chairs the Senate education committee, has announced he wants to finish an update of the Higher Education Act by the end of the year. To that end, both the Senate, controlled by Republicans, and the House, controlled by Democrats, have started scheduling hearings on hot higher education topics including college affordability, and schools’ handling of sexual violence under Title IX.