After losing another day due to a winter storm in the Washington, D.C. area, the negotiated rulemaking committee focused on writing a slew of regulations related to accreditation, distance education and innovation, faith-based entities, and the Teacher Education Assistance for College and Higher Education (TEACH) Grant program resumed its work Thursday.
The group began the day listening to reports from subcommittees, starting with the group focused on regulations for faith-based entities. ED is seeking to make changes due to a recent United States Supreme Court decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, and the United States Attorney General’s Oct. 7, 2017, Memorandum on Federal Law Protections for Religious Liberty. ED has argued that current regulations could be interpreted in a way that would discriminate against “otherwise eligible students and faith-based entities” by prohibiting them from participating in Title IV programs. That disqualification, ED argues is in violation of the First Amendment.
The subcommittee presented suggestions to change the conditions under which a borrower with a Perkins Loan made before July 1, 1993 could have repayment deferred. Currently, a borrower would be allowed deferment if he or she is a full-time volunteer in a profession deemed to be equal to the Peace Corps or under the Domestic Volunteer Service Act of 1973. The borrower must also not give religious instruction, conduct worship service, engage in religious proselytizing, or engage in fundraising to support religious activities. ED recommended striking those four conditions, but the subcommittee was split and said it was unlikely to reach agreement on this proposal. The same change was also proposed for National Direct Student Loans made on or after Oct. 1, 1980, but before July 1, 1993.
The committee also discussed ED’s proposal to strike language stating that members of religious orders are considered to have no financial need for purposes of campus-based aid eligibility, the definition of religious mission, and how accrediting agencies should consider institutions with religious missions.
ED also noted during discussion of faith-based entities that it did not provide language removing restrictions on religious employment from Public Service Loan Forgiveness (PSLF) because the program is not included in President Donald Trump’s budget. However, ED did propose changes to regulations with religious restrictions in the LEAP, GEAR UP, and Federal Work-Study programs, which are also not included in Trump’s budget.
During a public comment period in the afternoon, Katie Joseph of the Inter-Faith Alliance expressed concern over the proposals with regard to faith-based entities.
“To be clear, religious freedom, both the freedom to believe as we choose, and to build robust religious communities around those beliefs, is fundamental to our democracy,” she said. “But this freedom is not unlimited. And it does not include the automatic right to special treatment, in the absence of a claim that the government is substantially burdening religious exercise. … Granting broad religious exemptions without appropriate justification undermines the integrity of genuine claims and leads some to even question appropriately tailored exemption. The proposed rules being considered by the subcommittee are, by and large, unnecessary and unwarranted. These issues are highly complex. … Making sweeping changes in this area will harm, not help, religious freedom.”
The full committee also heard from the subcommittee on distance education and innovation, and engaged in a lengthy discussion on the definition of distance education, “regular and substantive interaction,” and the nature of instructors and instructional teams. The subcommittee previously debated whether accrediting agencies should have the authority to define those terms.
The committee also revisited discussion on state authorization and outsourcing. ED previously proposed a new definition for a “written arrangement” between institutions eligible for Title IV aid and entities that are not eligible for federal funding, which would allow an institution to outsource an unlimited portion of its educational program to such an entity. Under current rules, an eligible institution cannot enter into an arrangement with an ineligible organization to provide more than 49 percent of its educational program.
ED previously said it proposed elimination of the 49 percent cap in order to allow students to quickly acquire the skills they need for the workforce when their own institutions cannot offer it to them, and that it was inspired by an experimental program ED is currently overseeing—through its Educational Quality through Innovation Partnerships (EQUIP) initiative—in which institutions are granted the flexibility to outsource more than 49 percent of their program material to non-eligible entities.
However, ED on Thursday said it does not yet have data on the results of the EQUIP initiative “because it’s still very new.”
Ned McCulloch, representing employers, said that when outsourcing occurs in the private sector, “it’s because we can’t offer something.”
“We don’t have the resources, staffing, capability, of offering something,” he said. “And usually when you outsource something, you lose money, because rather than it being done in- house you are having to have somebody else do it, so there’s a loss of resources.”
He asked ED what the motivation was behind facilitating outsourcing, or if there were examples of institutions not having the ability to offer particular programs considered attractive by students.
ED responded by saying “the goal was to allow for innovation, and … to allow for programs where, as you mentioned at times the typical structure just doesn’t work.”
ED went on to say that when launching a new and innovative program it can be difficult to find the faculty or resources to get it off the ground.
Robyn Smith, representing legal assistance organizations that represent students, said she had “huge concerns” about the proposal.
“I think this allows basically a shell corporation to basically offload 75 percent, 100 percent, I think anything above 50 percent,” she said. “It is a real question about whether you even have an institution of higher education, which is defined as providing education, if it’s just a shell corporation that’s basically contracting out with unaccredited, non-state authorized, who knows who. I think it is a huge disaster and risk for the federal government, for taxpayers, and for students, for states, and for the legitimate schools who could be tainted in association with this kind of stuff going on.”
After a significant amount of time spent discussing proposals from the subcommittees, some members began questioning whether ED intentionally set the committee up for failure by packing too much into one negotiated rulemaking session.
Barbara Gellman-Danley, representing regional accrediting agencies, said “this looks very intentional,” saying it was as if ED thought, “‘Let’s make sure we don’t get to it … so we could do what we want anyway.’”
ED’s Annmarie Weisman responded by saying, “I can provide my absolute assurance that there was never an intention for this to fail.”
Still, the issue was brought up by other committee members and during the public comment period. Wesley Whistle of Third Way said “the agenda itself has too much on it.”
“[ED] has overcommitted to expansive policy change. For such an ambitious list of regulatory change, [ED] has failed enough time to properly attack critical issues,” he said. “The topics could dramatically change higher education in the U.S. as we know it, affecting nearly 20 million students, and the $120 billion that follows them in federal student aid each year. … We are concerned the revisions have the potential to greatly weaken higher education accreditation. In a time when only half of students who enroll in higher education graduate, the goal should be to strengthen accreditation, not weaken it.”
Following the public comment period, most committee members wanted to return to a discussion on the geographic scope of accrediting agencies, but ED officials opted to defer that discussion to Friday, to allow for more time.
The committee also decided to extend its days moving forward to run as much as two hours longer than previously scheduled, starting one hour earlier and ending one hour later. Friday’s session will be livestreamed by ED.
Publication Date: 2/22/2019