Reforming Higher Education, One Bill at a Time

The U.S. House’s education committee is moving forward with a piecemeal approach to updating the Higher Education Act of 1965—a massive piece of legislation that governs federal financial aid programs and a range of other policies but hasn’t been reauthorized since 2008.

The process kicked off in earnest Wednesday when the committee considered a bill that would require colleges and universities to report more foreign gifts or risk their access to federal financial aid. The bill, which advanced out of committee on a largely party-line vote, is the first in a series of bills that would, if actually enacted into law, amount to a reauthorization of the Higher Education Act.

North Carolina representative Virginia Foxx, the Republican chair of the committee, said in an interview that more legislation to reform higher education is coming soon, though she declined to give more information on what the different bills will entail. Based on what the committee’s hearings explored this year, several sources say they expect to see bills focused on accreditation, expanding the Pell Grant to short-term programs, free speech on campus, the student aid system and accountability, among others. Reauthorizing the sweeping law is a priority for Foxx.

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“It’s gonna be a reauthorization with real reform,” Foxx said in an interview. “The real emphasis that we’re going to have is on the reform of higher education.”

Experts and higher education lobbyists said breaking the complicated and fraught task of updating the HEA into discrete bills could be the only way for some pieces to move forward. That’s how recent significant higher education legislation has advanced. For example, the FAFSA Simplification Act, which overhauled the federal student aid system, passed in 2020 as part of a larger agreement on COVID-19 relief.

But the approach means lawmakers will have fewer negotiating chips to use to reach agreement. They also questioned whether Foxx could muscle the legislation through with a narrow majority in the House and Democrats in control of the Senate and White House. The current lack of bipartisanship is a major impediment, but even more compromise-minded politicians, like former senator Lamar Alexander of Tennessee and Senator Patty Murray of Washington, were unable to agree on a small package of higher education–related bills several years ago.

“The piecemeal approach is almost necessary,” said Jon Fansmith, senior vice president of government relations and national engagement at the American Council on Education. “This is the path of opportunity, not the ideal path.”

He and others would prefer a more comprehensive approach that addresses how changes in one area of the law affect other pieces of the law, though they are skeptical that renewing the HEA in one bill would be possible in Congress anytime soon.

“The problems that we have are because we do it piecemeal,” he said.

Focus on Foreign Influence

On Wednesday, lawmakers focused on just one section of the Higher Education Act.

Foxx co-sponsored the Defending Education Transparency and Ending Rogue Regimes Engaging in Nefarious Transactions (DETERRENT) Act along with California representative Michelle Steel, also a Republican. Foxx said at the start of the markup that the bill would “combat malign foreign influence on college campuses.”

Section 117 of the Higher Education Act requires colleges and universities to disclose all foreign gifts and contracts totaling $250,000 or more twice a year. The DETERRENT Act would lower the threshold to $50,000 and require reporting annually. Gifts and contracts of any value from countries of concern would have to be reported.

“In an age of unconventional warfare, postsecondary education is an easy target for adversaries seeking to steal our national security secrets and undermine our unifying national principles,” Foxx said. “It is not a radical principle that universities should be held to the same standard as the American people. We deserve to know which countries are paying for influence on college campuses.”

The American Council on Education, the chief lobbying group for the higher education industry, opposes the legislation. The group wrote in a letter to the committee that while it supported a number of changes in the measure, several provisions are problematic and raise privacy and security concerns for faculty and staff members at some institutions, ACE wrote.

Foxx and others specifically cited their concerns over the influence of the Chinese Communist Party on college campuses in their remarks on the bill.

Democrats on the committee said the bill was “xenophobic” and could “fan the flames of hate against Asian Americans,” though they expressed support for the goals of providing more transparency into foreign money on college campuses.

Virginia representative Bobby Scott, the top Democrat on the committee, said in his opening remarks that the requirements would make it more difficult for universities to comply with Section 117 and hinder institutions from conducting critical research.

“Our approach to confronting foreign influence in our academic institutions must be like a scalpel, rather than a sledgehammer, to ensure that innocent Asian Americans are not unfairly targeted in an overall effort to combat a legitimate threat,” he said. “Simply put, indiscriminate policies may cause more harm than good.”

Other Democrats said the markup was a waste of time and that the committee needed to focus its efforts on helping students.

Georgia representative Lucy McBath, a Democrat, noted that 15 years have passed since the Higher Education Act was last authorized.

“While anniversaries are normally a thing to be celebrated, this anniversary marks our continued inability as a Congress to do what we have always done when it comes to the HEA and come together in a bipartisan manner to reauthorize this critically important law,” she said. “We have done this so many times before, and I know that we all have it within ourselves to do it again.”

After the hearing, Scott said a piecemeal approach was better than nothing. He proposed a reauthorization in 2019 when he chaired the committee. He’s focused on making college more affordable. If the Republicans on the committee want to do that as well, he said that’s something they can work together on. Scott has introduced a bill to lower interest rates on student loans and double the Pell Grant, among other changes.

“We’ll see how much of that we can get into a reauthorization,” he said.

Breaking Up the HEA

Foxx, who in 2017 proposed a 542-page bill to reauthorize the HEA, said different members of the committee will be taking the lead on various bills.

“We think this is a better way to do it and then put them together in one bill,” she said. “That happens a lot around here, and we think this is a much better way to do it.”

Foxx’s 2017 attempt at reauthorization cleared the committee but didn’t receive a vote on the House floor. Senators involved with higher education policy did not respond to a request for comment on whether tackling the HEA bill by bill would be palatable.

“The more common-sense proposals are more likely to pass, rather than the entire HEA reauthorization being held up over disagreements,” wrote Adam Kissel, a visiting fellow at the right-leaning think tank the Heritage Foundation’s Center for Education Policy.

Kissel, who thinks the Education Department shouldn’t exist, said legislators should improve what they can until the agency shuts down. He added that Band-Aid solutions don’t resolve systemic issues.

Justin Draeger, president and CEO of the National Association of Student Financial Aid Administrators, said the committee’s staffers are among the most tenured on the Hill and understand the risks and advantages to the piecemeal strategy. The separate bills can move quickly if they get attached to a funding bill or other must-pass legislation.

“Unfortunately, you lose the ability to tackle really large issues in higher education in a comprehensive way,” he said.

Frederick Hess, director of education policy studies for the American Enterprise Institute, a conservative think tank, said this reauthorization attempt is essentially a messaging exercise and a way to signal priorities.

“There’s no way any major legislation is getting done in this Congress anyway,” he said.

Hess said Biden’s student loan policies, including attempts at student loan forgiveness and the new income-driven repayment program, have created bad blood and a lack of trust between congressional Republicans and the administration and Democrats.

“It very well could be years before there’s any plausible way forward,” Hess said. “What the administration has done on student loans is just so toxic that it makes any kind of serious conversation about HEA just a nonstarter right now.”

Republicans going into a negotiation with Democrats and the Biden administration on higher education issues such as student lending policies and the Pell Grant “feels like a sheep getting led to the slaughter,” Hess added.

“They have no incentive and no interest in being at the table at that point.”

The piecemeal approach does give Republicans a way to highlight specific messages as well as draw a contrast with the Biden administration, he said. The bills also can help to set the higher education agenda for the Republican Party and frame the debate if Republicans win the White House and control of the Senate, Hess added.

“If you’re actually hoping to legislate this thing, if there was a path forward, then you want to do a comprehensive bill,” Hess said.

Rebecca S. Natow, an assistant professor of educational leadership and policy at Hofstra University who researches federal higher education policy making, said that approaching an HEA update as a series of messaging bills shows how far the parties have moved apart in this area. Higher education issues used to attract bipartisan support.

“Part of the larger issue of what’s going on in Congress,” she said, is that “it’s hard to get any legislation through … I’m not saying we will never see a reauthorization, because anything could happen. I would be shocked to see one.”

Absent a big crisis like the pandemic or an instance where funding is going to run out for colleges, she said it will be hard for Congress to act on higher education. For a paper published in fall 2022, Natow researched why some higher education bills were able to move forward while others stagnated. Factors that she found helped bills be more successful included support from the party leadership and the president, cost savings, dealing with noncontroversial issues involving sympathetic beneficiaries, and urgency.

Natow’s study included the 2019 FUTURE Act. That legislation created a permanent funding stream for historically Black colleges and universities and other minority-serving institutions but passed primarily because funding for those institutions had expired.

“Without a sense of urgency around the future of federal higher education programs, this study’s findings suggest that the passage of comprehensive HEA reauthorizations will be difficult to achieve,” Natow wrote in the paper. “Only time will tell what circumstances, if any, will prompt lawmakers to reject the [best alternative to negotiated agreement] of the status quo in favor of reauthorization.”