Emerging Higher Ed Act Compromise

A small group of U.S. senators and representatives and their staffs are working at breakneck speed with the hope that Congress can wrap up its work by Memorial Day on compromise legislation to renew the Higher Education Act. But if a draft of the bill that is being circulated this week is any indication, numerous major issues remain unresolved and the measure, as currently written, could be a nightmare for colleges and the Education Department to carry out.

The draft measure obtained by Inside Higher Ed, which amounts to just shy of 700 pages already even though it lacks three of the bill's 11 sections (on graduate education, new programs, and private student loans), is the product so far of intense negotiations between leaders of the House and Senate higher education committees as they try to knock out a compromise version of the legislation passed by their respective chambers. Sens. Edward M. Kennedy (D-Mass.) and Michael B. Enzi (R-Wyo.) and Reps. George Miller (D-Calif.) and Howard P. (Buck) McKeon (R-Calif.) and their staffs are conducting the closely held negotiations.

In many ways, the compromise Higher Education Act bill (which at this point is in two thick spiral binders, and is not available online) represents the quintessential product of such a "conference committee," in that lawmakers and their staffs have sought to merge elements of often differing House and Senate bills into a cohesive whole.

For example, the compromise legislation embraces language from the House bill that would preserve (at least in name) the National Advisory Committee on Institutional Quality and Integrity, which advises the Education Department on accreditation, but replace its current 15 members (all of whom are appointed by the education secretary) with 18, 6 each appointed by the secretary, the Senate and the House. And the draft bill takes from the Senate-passed legislation a provision (attached to the bill on the Senate floor by Sen. Tom Coburn of Oklahoma) that would bar colleges and universities from using federal funds to pay a lobbyist to lobby federal agencies.

As is often the case, though, the compromise legislation doesn't pick and choose but merely offers "more" -- more provisions, and more regulation. On the bills' mandate that the Education Department create lists of institutions that have raised their prices by significant amounts, for instance, the draft legislation essentially adds many provisions from the House bill to those in the Senate, such that the compromise legislation would create a multiplicity of "college affordability and transparency lists."

At a minimum, the compromise legislation appears to call for the creation of 54 lists of colleges: six lists of institutions that have raised or lowered their "net price" by the most or least (highest price, largest increase, etc.) times nine different categories of colleges (two-year public, four-year private, etc.). But as drafted, the legislation may produce significantly more lists than that: college lobbyists point out that the bill calls for basing some of those lists on the "cost of attendance" as defined in Section 472 of the underlying Higher Education Act, which, they note, defines "cost of attendance" in 13 different ways (and the new legislation adds a 14th). By that count, the legislation would produce 431 different lists of colleges.

That approach, said one Congressional aide, is unlikely to achieve the lawmakers' stated goal of giving consumers more acucrate and useful information about what college costs. "Let's take every possible idea and put it in a list," the aide said. "Whether it's 38 lists or 400, it's an awful lot of overwhelming information in a country with a relatively significant financial literacy problem. It seems like it is going to serve to either confuse the hell out of people or give people a false confidence or a false sense of danger."

One other closely watched area in which the draft legislation offers a compromise is in the area of accreditation, where the circulated discussion draft would continue to bar the U.S. Education Department from promulgating regulations governing student achievement (and additional areas such as curriculums and admissions practices) but would allow the agency to regulate in realms such as faculty, facilities, and student support services.

While there is obviously a great deal that is in the nearly 700 pages of legislation so far, what is most newsworthy right now may be what remains disputed and hence is not in the bill. Numerous topics that were dealt with either in only one bill or the other or in differing ways in the two bills, and on which the negotiators remain divided, are either left out of the draft legislation entirely (often displaced by the words "on hold") or included with brackets around the language to suggest that they are still being discussed. They include:

• State "maintenance of effort" requirements. Most senators are balking at a provision (strongly opposed by many state legislators and policy makers) that would require states to maintain their fiscal support for higher education or otherwise risk losing a slice of federal funding. The so-called “maintenance of effort” provision requires that states finance higher education at or above average funding levels over the preceding five years; states that don't could forfeit a specific portion of the monies provided through the Leveraging Educational Assistance Partnership (LEAP), a need-based aid program.
• Textbooks. House leaders are pushing hard for language in that bill (favored by student advocates but opposed by many colleges and by publishers) that would require colleges to disclose ISBN numbers and pricing information in their course schedules, amid other reporting. There is also talk of new language that would discourage publishers from "bundling" CDs and DVDs and other material in textbook packaging.
• "Truth in tuition." Aside from the pricing lists mentioned above, the House-passed legislation also included a provision that would require colleges and universities to publish a "nonbinding" estimate of tuition and fees that they plan to charge students throughout the length of their undergraduate or graduate programs. Colleges oppose, not surprisingly, arguing that it would result in their producing misleading estimates of students' ultimate costs.
• Minority graduate programs. Lawmakers are feuding over provisions that would make 11 new colleges eligible for an existing federal aid program for historically black graduate programs. The 11 colleges (Alabama State, Bowie State, Coppin State, Delaware State, Fayetteville State, Grambling State, Kentucky State, Langston, Prairie View A&M, and West Virginia State Universities and the University of the District of Columbia David A. Clarke School of Law) have the support of key senators in their states, according to the Washington publication Politico , but their request is opposed by many members of the Congressional Black Caucus and by several black college groups. They argue that the new institutions -- which mostly offer master's programs -- should get their own program instead of diluting funds for the existing one, which supports doctoral programs.

Despite those and other big holes in the draft legislation, spokeswomen for the Senate Health, Education, Labor and Pensions Committee and the House Education and Labor Committee said Monday that they were still aiming for Congress to pass the bill by the time lawmakers head home for Memorial Day. Several Congressional aides and college lobbyists continue to believe such a schedule is untenable, and to worry that if lawmakers stick to it -- and continue to make most of the legislation's provisions effective immediately, which is unusual for legislation such as this -- the end result is unlikely to be pretty.