We Did it: Biden administration’s higher education rulemaking agenda moves ahead

Dec 13, 2021

BIDEN'S FIRST NEG-REG COMES TO AN END: All of the attention in Washington in recent weeks has been on whether Congress will pass President Joe Biden's sweeping social spending bill before the end of the year. But the administration's plans to overhaul major higher education policies are chugging along with far little fanfare.

—The Education Department's negotiated-rulemaking committee on Friday wrapped up its work after months of debate over the Biden administration's proposals. The panel reached an agreement on four of the 12 proposals while failing to reach consensus on the remaining, more contentious plans.

—Consensus achieved. The panel agreed to regulatory language on four issues: making it easier for borrowers with a severe disability to have their loans forgiven; streamlining loan discharges for borrowers whose school falsely certified that they were eligible for the loan; and eliminating interest capitalization on federal student loans in some events. In addition, the panel agreed to new regulations that will carry out Congress' restoration of Pell grant eligibility for incarcerated students.

—Key issues unresolved: The rulemaking committee, as expected, was unable to reach an agreement on some of the more contentious issues. That included various proposals covering how the Education Department processes and adjudicates claims for loan forgiveness by borrowers who are defrauded by their college as well as the circumstances in which borrowers are entitled to loan forgiveness when their college suddenly closes. They also failed to reach an agreement on restoring the Obama-era ban on mandatory arbitration agreements in higher education.

— Among the most significant issues: Negotiators failed to reach an agreement with the Education Department over how to structure the Biden administration's new income-driven repayment plan and how to expand the Public Service Loan Forgiveness program. In both cases, student and consumer representatives on the panel sought a more liberal approach than department officials were prepared to accept.

—Looking ahead: The Education Department is now bound, with some exceptions, to move forward with the regulatory proposals on which negotiators agreed. Department officials are free to craft their own proposals on the remaining issues on which there was no agreement.

—Up next: The Biden administration has already scheduled another round of negotiated-rulemaking for January. The panel will take up the next bucket of higher education proposals, which include reinstating the Obama-era gainful employment rule that was scrapped by the Trump administration and writing new rules to implement the tighter rules on federal funding of for-profit colleges — through the so-called 90/10 rule — that Congress adopted as part of the American Rescue Plan earlier this year.

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In Congress

Senate Majority Leader Chuck Schumer speaks during a news conference after the weekly Democratic policy luncheon on Capitol Hill on Dec. 7, 2021.

Senate Majority Leader Chuck Schumer speaks during a news conference after the weekly Democratic policy luncheon on Capitol Hill on Dec. 7. | Carolyn Kaster/AP Photo

BYRD BATH COMING: The Senate HELP Committee on Sunday unveiled updated text of its portion of the sweeping social spending bill that Senate Democratic leaders are looking to pass before Christmas. The language on key education provisions is mostly unchanged from the House-passed version, largely reflecting technical changes or minor tweaks.

— The text released by the HELP Committee and other committees this week is expected to meet the so-called "Byrd bath" this week. The Senate parliamentarian will hear arguments from Democrats and Republicans about whether various provisions meet the complicated rules of budget reconciliation, the procedural tool that Democrats are using to pass the legislation without needing GOP votes.

—What to watch: At least two key education provisions in the bill are potentially vulnerable as Democrats defend their legislation before the parliamentarian and begin to advance the bill before the parliamentarian — either from procedural challenges or GOP-led floor amendments.

— Expanding aid to some undocumented students: The legislation would expand federal student aid to students who are covered by the Deferred Action for Childhood Arrivals program, which protects them from deportation, or students who have Temporary Protected Status.

— Excluding for-profit college students from the Pell grant increase: The bill proposes restricting a $550 boost to the maximum Pell grant award to students attending public and non-profit colleges, excluding those at for-profit schools. Progressives have increasingly been calling on Senate Democrats to preserve that provision, but more than a dozen House Democrats opposed the measure. And it could take just a couple defections among Senate Democrats to kill the provision in the upper chamber.

— Other Senate committees have also been releasing their portions of the massive bill in recent days, moving Democrats closer to floor action on the bill even as they continue to negotiate and seek to win over Sen. Joe Manchin's crucial vote for the package.

In Congress

BIDEN ADMIN MOVES UP TARGET DATE FOR TITLE IX RULES: The Biden administration is eyeing April as the target date for unveiling major education civil rights proposals that rewrite Trump-era rules on sexual misconduct and create new protections for transgender students.

— The new timeline for releasing the proposed Title IX rules was included as part of a biannual government-wide regulatory agenda released on Friday. The new Title IX target of April, though not binding for the Education Department, is a month earlier than the agency's previous estimate of May.

— The Biden administration is expected to significantly rewrite the Trump administration's regulations that govern how schools and colleges must respond to sexual assault and harassment. And Biden administration officials have indicated they plan to also include in the new Title IX rules a range of new protections for transgender students, including their rights to access school bathrooms that match their gender identity and participate in school sports.

— Catherine Lhamon, the department's civil rights chief, said in a statement that the new April target for releasing the Title IX proposal "reflects the Department's commitment to work as speedily as possible" on the policies.

— Advocacy groups have been complaining for months that the Biden administration is taking too long to reverse Trump-era Title IX policies. Fatima Goss Graves, president and CEO of the National Women's Law Center, said in a statement on Friday that the group was "pleased that the Biden administration is taking action to restore Title IX protections against sexual harassment" but added that "this rule should not still be on the books."

White House

BIDEN HEADS TO SOUTH CAROLINA HBCU THIS WEEK: President Joe Biden will address graduates later this week at South Carolina State University, according to announcements over the weekend by the historically Black university and White House.

— Rep. Jim Clyburn (D-S.C.), the No. 3 Democrat in the House, was scheduled as the featured speaker at the school, his alma mater. But he invited Biden to deliver the commencement address instead, according to the university.

— Clyburn tweeted that he planned to walk across the commencement stage with the class of 2021 because he did not have the opportunity to do so in 1961 when he graduated. SC State said that, at the time, the university did not conduct December graduation ceremonies so Clyburn received his diploma by mail.

In the States

HE WAS HIRED TO FIX CALIFORNIA SCHOOLS — WHILE RUNNING A BUSINESS IN PHILADELPHIA: A top California schools official lives in Philadelphia and has a separate job there, more than 2,500 miles away from the schools he advises as one of the highest paid officials in the state Department of Education, according to records and interviews, POLITICO's Mackenzie Mays reports.

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Syllabus

— Becky Pringle, the country's top Black labor leader, pushes the National Education Association to take on social justice role: The New York Times.

— Federal relief money boosted community colleges, but now it's going away: The Hechinger Report.

— Texas schools started this year with record-high coronavirus cases, but weekly totals have now declined: The Texas Tribune.

— Oregon Health & Science University president apologizes after former AG Eric Holder's firm finds school fails to properly investigate misconduct: The Oregonian.

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