By Hugh T. Ferguson, NASFAA Staff Reporter
While Congress resumes consideration of legislative activity in an amended form, negotiations over the latest COVID-19 aid package have begun to gradually unfold, with congressional Republicans pitching liability protections for institutions of higher education as a top priority.
Enactment of any such proposal — which Senate Majority Leader Mitch McConnell (R-Ky.) has pledged to make the final coronavirus relief measure — is a ways off, perhaps not until late July, but leadership has offered broadstroke parameters as to how the federal government will assist higher education.
“I don't believe that additional federal spending is the right answer right now,” said Jonathan Butcher, senior policy analyst at The Heritage Foundation. “Although, if we're going to do it, if there is a pledge that this would be the last, I suppose that there would be some consolation from that.”
While higher education advocates are pushing for a number of provisions stemming from the implementation of the Coronavirus Aid, Relief, and Economic Security (CARES) Act — such as additional funding to curb revenue losses at colleges and universities and corrections to prevent limitations on the use of funds — there appears to be less of a rush to draft and implement this potential round of new aid.
“I think we have a little bit more time right now to be thoughtful about in this next round of funding,” said Tamara Hiler, director of education at Third Way, a center-left think tank.
Going into this round of negotiations, Hiler said she specifically wants to see legislation incorporating additional oversight and transparency measures to ensure predatory institutions are prohibited from being able to take advantage of federal aid, an issue that Democrats have pointed to as being needed following the implementation of the CARES Act.
Meanwhile, lawmakers have continued to move forward on discussions centered on not if, but how institutions can reopen safely in the fall.
The Senate Health, Education, Labor, and Pensions (HELP) Committee held a hearing and scheduled additional meetings on the logistics of a fall semester where continued expert testimony could help frame the needs of the next aid package and where liability protections and additional funding may come into play.
Prior to these hearings, HELP committee chairman Sen. Lamar Alexander (R-Tenn.) has repeatedly raised the prospect of schools receiving liability protections related to COVID-19, which would offer certain legal protections should someone on their campus become ill as a result of the virus.
“Almost all of Tennessee’s 127 higher education institutions will open in person, but they want governments to create liability protection against being sued if a student becomes sick,” Alexander previously wrote in an op-ed in Inside Higher Ed last month.
The issue has been continuously reiterated by McConnell, who has referred to the inclusion of these protections as a “red line” for Senate Republicans.
More than 50 higher education groups, in a letter spearheaded by the American Council on Education (ACE), have called on Congress to “quickly enact temporary and targeted liability protections related to the COVID-19 pandemic.”
“It would be good policy to make sure liability protections are included for schools that make reasonable choices on cleaning procedures and then face a suit for untold damages, for example,” Butcher said.
Congressional Democrats, however, have largely panned liability protections, as currently outlined by Republicans. While she did not directly address liability protections for colleges and universities, Speaker of the House Nancy Pelosi (D-Calif.) dismissed the idea of liability protections broadly in remarks made on April 29, saying “we have every reason to protect our workers and our patients in all of this. So, we would not be inclined to be supporting any immunity from liability.”
Sen. Patty Murray (D-Wash.), ranking member of the Senate HELP committee, has also said these protections would “protect corporations from having responsibility to maintain safe workplaces.”
Instead, Democrats have pitched and advanced through the House their own $3 trillion package that would, among other things, direct more than $37 billion to higher education institutions and prevent, retroactively, the Department of Education (ED) from imposing student eligibility restrictions on higher education emergency relief funds allocated in the CARES Act — a point for which Education Secretary Betsy DeVos has recently come under fire.
While negotiations are not expected to begin in earnest until early July, the issue of liability protections is already causing concerns.
“I definitely think that liability is not just a higher education issue — this is a much bigger, broader conversation that's happening with just businesses writ large, and I think higher education is a subset of that,” Hiler said.
This issue could be a sticking point and prove troublesome for the actual drafting and debate of the package.
“Both Republicans and Democrats are having to tackle this issue on a much broader level than just our higher education system and because of that, I do think it's a tough issue and it's going to be a sort of focal point of this next round of negotiations,” Hiler said.
While many states have previewed impending cuts being made for higher education, the prospect of additional federal dollars could stave off a draconian blow.
The California legislature, in a joint press release, committed to rescind all proposed cuts to state K-12 and higher education due to the “strong likelihood of additional federal relief,” but the commitment is tenuous.
“The key budget goal is preserving programs serving those who are most vulnerable. Nevertheless, all the budget plans being discussed acknowledge the possibility that more difficult cuts will be necessary, due to COVID spending needs and weak revenues,” said California State Assembly Speaker Anthony Rendon. “This will be especially true if Washington, D.C. doesn't step up.”
Publication Date: 6/12/2020
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