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US Higher Education Policy Report – May 25-29, 2020

This weekly report captures developments from the US executive and legislative branches related to higher education policy, and also includes relevant information such as reports and upcoming events.

Executive Branch Update

Department of Education Says Guidance on CARES Funding for Students Only Preliminary. On April 21, the Department of Education issued guidance stipulating that undocumented college students, including Deferred Action for Childhood Arrivals (DACA) recipients, are prohibited from receiving emergency federal cash grants allocated under the Coronavirus Aid, Relief, and Economic Security (CARES) Act. However, in a court filing on Monday, the Department said that guidance reflected only the Department’s “preliminary views,” and that it is still considering which students should be eligible for the funds. According to the Department of Justice (DOJ), the Department of Education “has not completed its decision-making process and arrived at a final interpretation of” the CARES Act provision setting up the emergency grant program. “The Department continues to consider the issue of eligibility for [Higher Education Emergency Relief Fund] emergency financial aid grants under the CARES Act and intends to take further action shortly,” the Department of Education posted on its website last week. The Department is currently being sued by the States of California and Washington over its guidance.

Meanwhile, the Congressional Research Service (CRS) examined the April 21 guidance at the request of Senate Health, Education, Labor and Pensions (HELP) Committee Ranking Member Patty Murray (D-WA). CRS concluded that the restrictions the Department placed on the relief grants for college students reflected an “unpersuasive” interpretation of the law, making the Department vulnerable to legal challenges. Senate Democrats have argued that language in the CARES Act allows DACA recipients to receive emergency financial aid grants at the discretion of each individual institution.

Trump Administration May Limit Work Program for International Students. The Trump administration is reportedly considering an executive order limiting the Optional Practical Training (OPT) program, which allows foreign students to work in the United States for up to three years after completing their academic studies. According to the Wall Street Journal, Trump administration officials say the temporary restrictions would be designed to benefit American graduates looking for entry-level work during the economic downturn caused by the COVID-19 pandemic. More than 223,000 new graduates remained in the United States under OPT in the 2018-19 academic year according to the Wall Street Journal, an increase from 106,000 participants five years earlier.

Additional Resources Released Regarding COVID-19. This week, the Department of Education and other federal agencies have continued to release guidance and resources for students and schools in response to the Coronavirus pandemic. The Department continues to update its COVID-19 information and resources web page with the most current information, and questions for the Department may be directed to COVID-19@ed.gov. Additional Coronavirus-related guidance released includes:

Meanwhile, last week Secretary of Education Betsy DeVos hosted a web conference for reporters with state and school district-level administrators, to hear about online education strategies


Legislative Update

Democrats Decline to Support Liability Protections for Colleges. This week, Democratic leadership of the House and Senate education committees declined to support liability protections for colleges and universities. “Many colleges are working hard to do the right thing – but they need clear, enforceable standards and guidance from the federal government,” HELP Committee Ranking Member Senator Patty Murray (D-WA) said in a statement. “Instead of just saying it’s okay if students or employees get sick, which is what a liability shield would do, we need to prioritize ensuring that – when the time comes – colleges can reopen safely and in accordance with the advice of public health experts,” she added. According to the House Education and Labor Committee, Committee Chairman Bobby Scott (D-VA) would likewise be skeptical of any liability shield for institutions. The statements come in response to a letter sent by the American Council on Education (ACE), the Association of American Universities (AAU), and other higher education advocacy groups to House and Senate leadership, expressing concerns with the “huge transactional costs associated with defending against COVID-19 spread lawsuits.” The letter requests that Congress “quickly enact temporary COVID-19-related liability protections for higher education institutions and systems, affiliated entities, as well as their faculty, staff and volunteers.” Meanwhile, last week, Senate HELP Committee Chairman Lamar Alexander (R-TN) said he would not support any future COVID-19 related stimulus bill without liability protections for both K-12 schools and institutions of higher education.

Bipartisan Group of Senators Request FAFSA Changes Due to COVID-19. On Wednesday, Senators Maggie Hassan (D-NH), Tim Scott (R-SC), Cory Booker (D-NJ), and Kelly Loeffler (R-GA) sent a letter to Secretary DeVos requesting certain changes to the Free Application for Federal Student Aid (FAFSA) application due to the impact of COVID-19 on applicants. The letter expresses concerns that the FAFSA may not accurately reflect “the current financial situation of students” who are filing the form by failing to reflect lost income or other financial hardship due to the pandemic. The Senators also requested that the Department provide flexibility to financial aid administrators. “Financial aid administrators should have the support, guidance, and flexibility of the Department to fairly and efficiently execute ‘Professional Judgment,’ their authority under the Higher Education Act to recalculate financial aid eligibility when a student’s expected family contribution has abruptly changed,” the letter says.


Reports

Nearly 3 in 4 voters say people should be required to test for COVID-19 before returning to work and school, according to a new poll taken by the Morning Consult.


Upcoming Events

  • On Wednesday, June 3, at 9:30 AM EST, the Senate HELP Committee will hold a markup to vote on the nominations of Keith E. Sonderling to be a member of the Equal Employment Opportunity Commission; Andrea R. Lucas to be a member of the Equal Employment Opportunity Commission; Jocelyn Samuels to be a member of the Equal Employment Opportunity Commission; Marvin Kaplan to be a member of the National Labor Relations Board; Lauren McGarity McFerran to be a member of the National Labor Relations Board; Sethuraman Panchanathan to be director of the National Science Foundation; Julie Elizabeth Hocker to be an assistant Labor secretary; and Richard Giacolone to be Federal Mediation and Conciliation Director.
  • On Thursday, June 4, at 10:00 AM EST, the Senate HELP Committee will hold a hearing titled, “COVID-19: Going Back to College Safely.” Witnesses include Purdue University President Mitch Daniels, Brown University President Christina Paxson, Lane College President Logan Hampton and Georges Benjamin, Executive Director of the American Public Health Association.
© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 152

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About this Author

Genevieve Bresnahan Public Policy Squire Patton Boggs Washington DC
Senior Public Policy Specialist

Genevieve Bresnahan utilizes the knowledge and policy experience gained from working on Capitol Hill to advise clients on pertinent policy issues in several areas, including foreign affairs, immigration, transportation and infrastructure, local governments and higher education. In addition, leveraging her cultural heritage and language ability, she serves as a policy specialist to the firm’s Latin America practice.

Immediately prior to joining Squire Patton Boggs, Genevieve served in a variety of capacities in the office of Congressman Pete...

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