With great foresight into the happenings of the Hill, today Christopher T. Murray and Kenneth D. Salomon, partners at Thompson Coburn LLP, share with us what they have observed regarding Higher Ed Act Reauthorization possibilities for 2015. WCET is currently exploring ways to work with other organizations on policy advocacy and you will hear about a joint letter we have crafted on the proposed teacher preparation regulations and their implications soon. Thank you Chris and Ken for sharing your insights with us.
The Higher Education Act, commonly known as the HEA, is the major law that authorizes the federal programs that support colleges and universities and their students, most significantly the federal student loan and grant programs.
First enacted in 1965, the HEA must be renewed periodically (called “reauthorizations”) or else it expires. In the event that Congress does not fully reauthorize the HEA, it must pass a stop-gap, temporary extension so that HEA programs and funds remain flowing. Including the original law, there have been nine iterations of the HEA, and the upcoming reauthorization will be the tenth version of the HEA in its fifty years.
Reauthorization is generally a multi-year process that provides the opportunity for Congress to renew existing programs without change, amend them, or add new programs or requirements. Although the prevailing view outside the Beltway is that Washington is broken and that Congress has done little to move legislation forward, we are optimistic for the chances of some sort of HEA bill moving this year.
Simply stated, consider HEA reauthorization under way.
In the Congress that ended in December 2014, the education committees in the House and Senate made much progress in getting smaller – but still important – bills passed by their chambers and signed into law. The passage of those smaller bills in 2014 clears the way for consideration of the two behemoths under these committees’ jurisdiction: the Elementary and Secondary Education Act (most recently enacted as No Child Left Behind), governing K-12, and the HEA, governing higher education.
In 2014, both committees began laying the preliminary groundwork for HEA, anticipating movement in 2015. Most public were the committee hearings on HEA reauthorization, a typical precursor to the reauthorization of any major law.
The House passed a series of piecemeal HEA bills in 2014 that will be wrapped into a full reauthorization, largely a symbolic gesture because these bills died in the Democratically-controlled Senate. Though symbolic, their passage, on topics like transparency and competency-based education, did send the important signal that there are areas of common ground between the parties.
In the Senate, then-Ranking Member Alexander (R-TN) convened a task force on reducing regulation in higher education, and Chairman Harkin (D-IA) introduced a draft bill in the waning days of the Congress. Senator Harkin spent the greatest amount of time during his tenure with the gavel castigating for-profit institutions, and that posture will change vividly to a broader examination of higher education as a whole with Alexander now chair.
Two Major Changes Will Influence Reauthorization
Two major changes will influence what this Congress does in this reauthorization. The first is the change of Senate control from the Democrats to the Republicans. The second is the fact that three of the top four House and Senate education committee leaders are new.
Joining Chairman Alexander at the helm of the Senate education committee is Ranking Member Patty Murray (D-WA). In the House, Representative Kline (R-MN) is on his last term as education committee chair, but the Committee’s longtime Democratic leader retired and has been replaced by Representative Bobby Scott (D-VA). Senator Alexander may be the best-informed committee chairman in history on higher education, having devoted his career to education, from serving as US Secretary of Education to President of the University of Tennessee. Both he and Kline are focused, in large part, on regulatory simplification.
Building on the initial steps taken in the last Congress, preparatory reauthorization discussions among the new committee leaders and the Administration have been going on for the past few months. These efforts have been intended to narrow differences and identify areas of consensus, which do seem fairly numerous despite notable disputes on issues like gainful employment and the college ratings system.
Congress has two means to set aside regulations undertaken during the Obama era that they find objectionable: statutory provisions in the reauthorization bill repealing or revising them, or denying the Department funding to implement them in the Department’s annual appropriations bill. In either case, the President could veto the legislation. If, however, the reauthorization or appropriations bill contains enough other policies that the President wants, he may determine to sign the measure into law anyway despite some concerns.
Both chairmen have said since December that they hope to turn in earnest to the HEA by summer, once they have completed work on K-12 reauthorization, with the goal of sending an HEA reauthorization bill to the President by year’s end. That’s an ambitious schedule, but one that might well be achieved.
In the House, expect legislation to move quickly through the committee markup and then to the House floor for passage. In the Senate, Chairman Alexander is looking to return to regular order to allow amendments during the committee markup and on the Senate floor, including Democrats throughout the process. Mr. Alexander is committed to the Senate moving back to its traditional role as a deliberative body, largely absent during the tenure of Majority Leader Harry Reid (D-NV). The result will be a complicated process on the Senate floor for amendments, but the bill will likely be more bipartisan as a result, and thus also more apt to be signed by a Democratic president.
The final step in the process may be the most important: the conference committee. Leaders from both chambers appoint conferees to negotiate between the two bills and hammer out a final bill. House and Senate leaders tend to pick their A team of policy leaders, and those members then have in-depth conversations as they put the final touches on the bill.
Though the parties have disagreed on certain higher education policies over the decades, the HEA has not historically been overly partisan. For example, the last reauthorization of the HEA occurred during the final months of the Bush Administration in August 2008 when Nancy Pelosi (D-CA) was Speaker.
It is far too early to know whether or not Chairmen Kline and Alexander will be able to meet their aggressive HEA reauthorization timeline. Similarly, it is too soon to say what a final reauthorization measure will or will not include.
Will Congress Address eLearning’s Concerns?
Over the last two decades, Congress made changes that impacted eLearning dramatically. The 1992 reauthorization made distance learners eligible to receive federal financial aid for the first time. The 1998 reauthorization created the Distance Learning Demonstration Program, and the 2006 temporary extension of the HEA eliminated the 50 Percent Rule.
If there are policy objectives that the eLearning community would like to see added to or changed in current law or regulation, both education committees are looking for concrete suggestions, including proposed statutory language. There is time, but not too much, for the eLearning community to come together with a consolidated package of recommendations. The train is leaving the station, and the next opportunity will be many years away.
Christopher T. Murray
Partner, Thomas Coburn LLP
Kenneth D. Salomon
Partner, Thompson Coburn LLP