The Higher Education Act and the Pandemic

It feels like a long time ago. But before the pandemic created a public health crisis, shuttered businesses and raised questions about how and when Congress will be able to meet again, Republicans and Democrats on the Senate’s education committee were “dang close” to reaching an agreement to update the nation’s main higher education law after years of failure, according to a top Republican aide to the committee.

In February Senator Lamar Alexander, a Tennessee Republican and the committee's chairman, spoke at the annual Community College Legislative Summit.

About 300 people were crowded in a room in the Senate’s Hart Office Building. Most were seated in metal chairs, while others stood shoulder to shoulder. A catering worker at the Capitol refilled coffeepots at a table in the back.

This was before social distancing.

Alexander was optimistic that day, but he said the committee would have to move quickly for Congress to pass the measure by the end of the year.

The optimism was backed up by Republicans on the committee who felt a deal was so close that Alexander could soon schedule a vote in the committee on reauthorizing the Higher Education Act, the aide said in an interview last week.

But then the pandemic arrived.

Alexander is back in Tennessee, living in one room while his wife lives in another during the pandemic, Politico reported last weekend.

“I’ve been on the phone until my neck hurts,” Alexander, whose committee also handles health-care policy, told the news site. “I find myself sort of exhausted at the end of the day from the phone calls and the discussions I’m having about the present and what comes next.”

Now hopes for a deal and a committee vote have been quashed as attention has turned to the immediate crisis and stimulus packages to help workers and businesses just survive. It’s unknown if the Senate will return to the Capitol on April 20 as scheduled, and if so, exactly how it would conduct business. The House, which was also supposed to return that day, announced Monday it will not convene until May 4.

A couple of months ago, the reauthorization of the Higher Education Act -- which included provisions to simplify the application for student aid and for increasing the size of Pell Grants --- was for higher education lobbyists the top issue of the year.

But on Monday, Terry Hartle, senior vice president for government and public affairs for the American Council on Education, said in an interview, “I haven’t heard anyone even mention reauthorization for two months.”

Agreeing was Craig Lindwarm, vice president for government affairs at the Association of Public and Land-grant Universities.

“Passing a comprehensive HEA reauthorization seemed like a herculean task at the beginning of the year,” he said. “With Congress rightly focused on helping the nation address COVID-19’s massive impact on public health and the economy, 'herculean' now seems like a very generous way to describe the likelihood of a comprehensive reauthorization of HEA.”

The Republican aide said, “It’s dishonest to say it’s not harder now. Until we get to a stable public safety environment, everything is hold.”

But the aide said he hasn’t given up on trying to reach a deal on the bill this year, before Alexander retires.

The basis for that hope is if the top doctors on President Trump’s coronavirus task force, Anthony S. Fauci and Deborah Birx, are correct and life might be able to begin returning to a semblance of normalcy by the end of May.

And if negotiations continue, they’d pick up where they were before the pandemic.

"I felt like we were pretty close to an agreement," the aide said. "I felt pretty close to being able to schedule a markup."

The aide said Republicans were having "really good, productive conversations" with Senator Patty Murray, the Washington Democrat who is the committee's ranking member.

"We were getting dang close, and there’s no reason why those conversations can’t go on," according to the aide.

What Happens Next?

Higher education lobbyists remain skeptical a deal is possible this year and have begun thinking about how to get the wish list they had for the reauthorization bill included in other bills, including future stimulus packages.

In addition, a spokeswoman for Murray didn’t respond when asked if she agreed with the characterization that the sides were “dang close.” Also remaining is a key holdup over the controversial Title IX regulation U.S. Education Secretary Betsy DeVos is expected to issue any day, changing how colleges and universities deal with allegations of sexual assault.

Saying that processes at institutions are skewed toward those making the allegations, the rule is expected to require, among other things, that the accused be able to cross-examine their accusers -- a change opponents say would have a chilling effect on victims from being able to come forward.

An aide to Murray had said around the time that Alexander and Murray spoke to the community college officials that the top Democrat on the committee continued to opposed the rule “and has made clear from the start of negotiations that any reauthorization of our country’s higher education laws must address the four key challenges of affordability, accountability, accessibility and campus safety.”

Murray likely would have to set aside trying to block the controversial Title IX issue in the bill to reach a deal. Republicans are continuing to insist on more due process for the accused.

“You can’t kind of have due process,” the Republican aide said.

Still, Murray could decide to make a deal because Alexander’s retirement would make it more difficult to reach an agreement next year.

However, at best, lobbyists think the chances of getting policies into a reauthorization bill are uncertain.

"Right now, the priority for Congress is dealing with the coronavirus," said Shiwali Patel, who heads federal and state policy and advocacy involving campus safety for the National Women’s Law Center.

The center and others opposing the pending Title IX rule had been hoping to have other policies included in the reauthorization bill, including a requirement that institutions conduct campus climate surveys to assess their campuses’ safety from sexual harassment and abuse, as well as assessing the effectiveness of their policies.

But for now, she said the groups are focused on asking DeVos not to issue the rule at a time of severe upheaval for colleges and students. If she issues the rule anyway, they would look at other avenues for Congress to respond, Patel said, including a House bill that would prevent it from being implemented.

Hartle said congressional staff who are working on coronavirus relief packages have been clear that they’re focused now on emergency help.

But eventually Congress is expected to begin looking forward and to work on a stimulus bill focused on economic recovery.

“If we are eventually looking at an infrastructure bill to stimulate the economy, that involves policy as well as funding -- and it seems possible that is where we could see HEA policy conversations occur,” said Beth Stein, senior adviser at the Institute for College Access & Success and a former longtime Senate aide.

Advocacy groups like TICAS had hoped to include in a reauthorization bill measures like the closing of the so-called 90-10 loophole, which they say incentivizes for-profit colleges to recruit veterans of the U.S. military.

Stein worries that as many unemployed people are considering going back to college for more training, more aggressive recruiting by for-profit institutions will follow, particularly recruiting of members of the military.

Other issues have also become more important during the pandemic, Stein said, including "protecting students from sudden school closures, making sure the [Education] Department is able to accurately assess which schools are the most at risk of closing, and making sure that there is sufficient transparency about the emergency transition to online learning."

Another issue that seems even more important than even a couple of months ago, said Clare McCann, deputy director for federal higher education policy at the center-left group New America, is increasing the size of need-based Pell Grants, as more people look to go back to college during the recession.

"Since HEA is more important than ever now, heading into a recession, I'm still hopeful that lawmakers will find the time before the end of the year to pass important legislative changes," McCann said in an email. But, she acknowledged, “it's safe to say that every day Congress is working on COVID-19 relief is a day less they have to work on HEA negotiations.”