Jon Fansmith: And welcome to the February 18th edition of dotEDU Live. I am your host, Jon Fansmith, senior vice president For Government Relations and National Engagement here at ACE. It was great to see a lot of you in person last week at the ACE Experience, so many fans of the webinars and the podcast, so that was really nice. A lot of people reaching out to express how much they appreciate us doing this, and we really appreciate you participating too. Speaking of great people to see, I am joined by my amazing co-hosts, Sarah Spreitzer and Mushtaq Gunja, as always. Hey, guys.
Sarah Spreitzer: Hello.
Mushtaq Gunja: Hey, Jon.
Jon Fansmith: We are going to cover a few things today, we're going to touch quickly, probably more quickly than they merit, on the current process for secretary-designate Linda McMahon heading towards confirmation and what she said at her hearing last week, the status of what's happening with the NIH cap on indirect costs and legal action ACE and others have taken in that area. But the real focus of our discussion today, and what we're going to get back to in just a second, is the Department of Education's Dear Colleague Letter on DEI that was issued late on Friday, this past Friday. Lots to talk about, lot of interest, a lot of questions coming in. But before we get into any of this conversation, Ted, we are joined by you, and hopefully, you won't hold it against me, that I waited this long to introduce you to the audience, but it is a special treat as always to have you join us. You're doing it more and more regularly, and we are always happy to have you.
Ted Mitchell: Well, listen, Jon, I always feel like a hanger on so I'd be happy for any airtime I get. So thanks, you guys, for having me, and thanks, everyone, for joining us today. And I'm joining because I just want to put an exclamation point on a couple of things that we're going to talk about today. And first, it shouldn't go without saying, but diversity, as we'll talk about for most of our time together, diversity is central to our work. It's central to our work of building America, that's what higher education does. Even Justice Roberts in his SFFA opinion said, look, diversity matters. It's a worthwhile goal. So I think that what we need to do is we need to think about keeping that at the center of our experience and the center of our programs, and think about how best to achieve goals of diversity in a context that is becoming more challenging.
Straight out, it's going to get harder in this administration than it has been, but it's not going to divert us from our goal, it's not going to divert us from our central mission. I think we need to think about diversity as broadly as we can. I said at the ACE Experience last week that we need to think about diversity not just in terms of race but in terms of veterans, in terms of disabled students, student parents, students who are working, trying to go part-time. This is what we really mean when we say higher education builds a diverse America, we need to create opportunities for all of those people and more. So we should get on with it, but we're going to have some headwinds. And the last thing I want to say, Jon, is that I hope that, today, we're going to have a discussion that says, "Law, not law."
And to be abundantly clear, Dear Colleague Letters are not law, they are simply statements of intent by executive agencies about how they intend to interpret the law. So what is the law? The law is SFFA, the law is the 14th amendment, the law is Title VI. If on Thursday you were in compliance with SFFA, the 14th Amendment, and Title VI, you are still in compliance with the law today. And so overcompliance, anticipatory compliance, preemptive compliance is not a strategy. The strategy needs to be much more considered, much more nuanced, and I hope that, today, we can give you some ideas about how that can work.
So thank you for all the work that you do do, the confusion, almost chaos is hard for all of us to navigate, but I think if we can remain in the center of the river, if we can retain our allegiance to our primary goal of high quality education for all, we will come out of this okay. And let's now talk about how to do that. So let me turn back over to Jon and to Mushtaq. I'm on should you need to send any of the really hard questions to somebody but me.
Jon Fansmith: Yeah. Thanks, Ted. And Mushtaq, I know we have a few things we wanted to touch on before we get into the bigger conversation. And thanks, Ted, especially for highlighting I think where a lot of the conversation's going to go before we dig in. But what were the things you want to touch base on before we got into the DCL?
Mushtaq Gunja: Yeah. Let's do a couple of things first, let's do them relatively quickly. Last Thursday, Linda McMahon had her confirmation hearing, I want to just touch base, make sure that we are able to lift up the important things that happened there. Then I want to just quickly circle on the NIH IDC lawsuit that happened and where we stand there before we spend most of our time on this Dear Colleague Letter. Friends, I'm going to moderate this conversation. I'm going to keep an eye on both the Q&A and the chat. Q&A is probably the better place to put questions, but I'll try to do my best fielding both of them. We have I think 4,300 of our friends here on this call, so we may not get to every question. Thank you for those of you who also submitted questions in advance. And then let's see how many of these we can knock off in 45-ish minutes.
Let's talk Linda McMahon first. Sarah, Jon, I know both of you were following this closely though it was happening while we were on stage at the ACE Experience. What are the important things for the audience to know about that confirmation hearing, what it might mean for the Department of Education going forward in their priorities?
Sarah Spreitzer: I thought it-
Jon Fansmith: Go ahead, Sarah.
Sarah Spreitzer: Sorry. I have probably the least to add to this conversation, so I'll go first, obviously. I was going to say it was really impressive given how many policy proposals have been floated by the administration such as dissolving the Department of Education through the executive order, how well Linda McMahon handled those questions and talked about working with Congress on big policy issues that she knows cannot be handled just by the White House or by the administration. And so to me, seeing the other nominations go forward, she was very calm, she was very collected, she was very thoughtful.
Jon Fansmith: Yeah, I'd pick up on that. I think she was clearly well-prepared. Keep in mind this is her second time going through a confirmation process, so she's familiar with what that process means. Given, as Sarah pointed out, the fact that there had been rumors for weeks about a pending executive order... which we still haven't seen but everyone expects to see at some point probably after her actual confirmation vote, of an executive order to abolish the Department of Education or to minimize the Department of Education, that's a tough environment to step into. And I think to the extent possible, she did handle it really well, and she said that may very well be the direction of the administration, she expects that to be the direction of the administration, and if so, she will dutifully carry out what the president asks of her. But she also recognizes that Congress has the final authority here, that it would take an act of Congress to abolish the Department of Education or to make substantive changes.
And what I thought was an interesting pivot by her when she would talk about that, you didn't get the sense she was really eager to blow up the Department of Education, you got the sense she talked about things like realigning or changing to reflect our new priorities, a lot more about retooling the department to then abolishing the department is how she talked about the work she wanted to do. So certainly, the administration, their policies are set in the White House, in the executive, by the president. He very much seems likely to direct the department to be minimized or abolished, and she will proceed, but you didn't get the sense necessarily that this is something that is top of the list of things she's looking to accomplish. In fact, when she talked about, to Sarah's point, the work of the department programs within the department reaffirmed support for Pell Grants, for instance, and even supporting an increase for funding Pell grants. Those don't speak to somebody who's coming in to try to blow up the different things that the administration or the department does.
And I think that also was reinforced by some of the other nominees we've seen for senior positions, Nicholas Kent is undersecretary of education, a few other folks, that understand how the regulatory process works, understand how the department governs, understands the interplays between Congress administration laws and regulations and guidance, people with policy experience who want to do good work. So you can see... and I've said this before, I said at our meeting last week, there's a couple of different tracks of authority in this administration, whether that's White House or very politicized efforts, this Department of Government Efficiency effort by Musk, which is so disruptive at the agencies, we are also seeing at the agencies these kinds of policy folks who were there to accomplish things and work within the norms of governing. And I think that hearing, at least the confirmation hearing last week, showed some positive signs in that regard.
Ted Mitchell: Yeah, Jon, I just want to reinforce what you were saying about the McMahon hearing and also Nick Kent. These are people who we have worked with in the past who we have common ground with, and a couple of questions over the... before we started about ACE's advocacy, and we really do believe that we will find common ground with the administration. And when the department gets put together in whatever form Secretary McMahon wants to have it, we look forward to working with them on things, like short-term Pell, workforce development, other areas where we know we have a lot in common.
Mushtaq Gunja: There's some places where we may find some common ground, and there's some places where I know we will not, at least with the administration writ large, and that might segue us over to the NIH IDC funding freeze or fight... cap that they're trying to put on IDC. Jon, Ted, what can you tell us about where we stand with respect to all things NIH and IDC?
Jon Fansmith: And I might actually turn to Sarah in terms of the overall cap strategy, but Sarah, why don't you just set up the thing for folks that are unaware, then I think Ted and I can talk a little bit more about the status of ACE's lawsuit and the other lawsuits.
Sarah Spreitzer: You mean try and explain what F&A stands for? So we have facilities and administrative or indirect costs that go into our grants from the federal government. Our institutions perform research in partnership with the federal government, it's been a long-standing relationship that really came out post-World War II to perform this research for all of the United States. And when you receive a grant, there's direct costs and then there are indirect costs, and our indirect cost rates, how much it costs for an institution to perform that research, to pay the people, to keep the lights on, to keep the labs functioning, that rate is negotiated either with health and human services, or in some cases, the Office of Naval Research, depending on who you do the most research with. Most of those rates are above the 50 percent level. So that's added onto the top of your direct costs. NIH on February 7th suddenly put out a notice saying that going forward, and for existing grants, that they would be capping indirect costs 15 percent, which clearly is much lower than 50 percent or more. It was going to cost our institutions millions of dollars.
And really, I think what we saw with some institutions, including the University of Iowa, they said, we're not going to perform federally funded research. They actually told faculty to pause in applying for grants and going forward with the research because the cost would be too great to bear if the indirect costs were capped at 15 percent. And so the associations acting very quickly, including ACE, along with our colleagues at AAU and APLU, filed a lawsuit. There were two other lawsuits filed, one by state attorneys' general and then another by our colleagues over at AAMC. I believe those have been enjoined together, Mushtaq. There is a temporary restraining order saying NIH cannot take this action. And I think people have been communicating to their congressional delegations, especially in red states, about what that indirect cost cap might mean.
And I raised that because this is not the first time the Trump administration has tried this. They tried to do it in their budget request in 2017 by capping it at 15 percent in the appropriations committee, and a bipartisan show rejected that cap because it is the real cost of doing research. And we have an explainer that I think that we will post in the chat so that folks can see it. There's some questions here about an indirect cost rate, what it means. There are caps currently at the Department of Education and at USDA, I think some of that is because we don't have highly specialized labs in which we're doing these works, like with the TRIO grants at the Department of Ed. We've also seen this floated as an idea for the National Science Foundation or the Department of Energy, all of those fall under our negotiated rates. And so we are very involved in pushing back on this idea, it may come back under the idea of being added in appropriations. But for now, it's really important for our institutions to educate their members about indirect costs.
Jon Fansmith: And in terms of what we've done and others have done beyond... and I'll say Sarah's leadership on the advocacy, which I think has been really strong in understanding that and has led to the things we've seen senators from deep red states speaking out about this in opposition to what I understood, we have pursued also legal remedies. We partnered with AAU and APLU to file suit in a district court, federal district court, in Massachusetts a little over a week ago on Monday of last week, and filed in the same district court as 22 states attorneys general, and then another group led by AAMC, our colleagues at AAMC, on behalf of number of health organizations, as long as, in our suit, representing a number of institutions directly as well. Those three separate cases, initially, a temporary restraining order was issued on behalf of just the 22 states represented by the attorneys general. But because our suit came in seeking a national injunction subsequent by the same judge, restraining order was placed in joining this NIH action nationally.
So as of now, whatever negotiated rates institutions have with NIH, those are in effect. We are having a hearing... the three cases are being joined before the same judge, we're having a hearing this Friday, at which time we should learn more about having seen responses from the government which, was filed this morning, and then a subsequent response from our attorneys that will be filed this week. We will have a greater sense of what the judge might be thinking, but we certainly are hoping for a binding national injunction going forward. And the one thing I'd say there, why it's really important to act and act quickly here, and sucking up to my boss a little bit, but kudos for acting very quickly and decisively over a weekend in short time circumstances.
Sarah's point, if this happens at NIH, then it might happen at NSF, it might happen at the Department of Energy. Being very clear and aggressive out of the gate isn't just about stopping what was clearly, to our minds, an improper action, but also putting a little bit of our own chilling effect back into the federal government saying, "Don't pursue these actions in other cases because it's not working out for you in the first test trial." So a lot of great work there. And yeah, just a bit patting ourselves on the back, but also our colleagues who jumped in and filled the gaps, it was a real community-wide effort to respond here.
Mushtaq Gunja: Go ahead, Ted.
Ted Mitchell: I was going to say we were on the Hill last week and talked to, as Sarah I was saying, talked to a number of our representatives and senator offices, and I think that this is one that took them by surprise as well. And I think now that they know what the stakes are, they're engaged. And so to all of you who have connections with your members of Congress, please be sure to reinforce the message that, A) science is at stake here, and B) this is not just some hand-waving overhead that they're talking about, this is fundamental dollars that need to be in place to maintain the partnership between the government and higher education to produce the science we depend on.
Sarah Spreitzer: Yeah. And before we move over to the Dear Colleague Letter, I would just say there's a lot of chaos happening at the various science agencies. We saw on Friday the 2,000 people were let go at the National Institutes of Health. We know that there are still restrictions at the National Science Foundation about external meetings. We know that there are certain grants being stopped. The ADVANCE grant, which was focused on encouraging women to go into the STEM fields, very prestigious grant, that grant opportunity was pulled down at the NSF. And so even though we've had the OMB memo that did an across-the-board funding freeze, and that was stopped by the courts, it still seems that many of these grant programs are being stopped. And whether or not that's legal, it's unclear.
And we just saw last week IES, the Institute for Education Sciences, a number of contracts were stopped, there were a number of programs, like the Teacher Quality Partnership grants, the SEED grants, which were suddenly stopped. And so we know for our research administrators, this is a really chaotic time. And I would just say if you have examples of grants that have been stopped, please send them to us. We'll put it into the chat, govrel@acenet.edu. We're trying to collect examples of that work.
Mushtaq Gunja: Thanks, Sarah, because that's a very tangible thing that folks on campus can do to be able to help in this fight. So please do, Sarah, if you wouldn't mind putting that in the chat, that would be wonderful. Now, Ted, you said that the NIH IDC stuff caught at least some members of Congress by surprise. I think turning to the Dear Colleague Letter, I think that this one sadly did not really take us by surprise, I think we had some sense that this was coming. We have a whole range of folks in the audience here. Let's just take this one step at a time, what is a Dear Colleague Letter? Ted, you made reference to it not being law, I'll just quote footnote three of the letter, this Dear Colleague Letter, "This guidance does not have the force and effect of law, and does not bind the public or create new legal standards." That's from the Dear Colleague Letter itself. So that's really important to know. Given that, what is the Dear Colleague Letter? What's this importance? Let me turn to Jon first and then see if anybody has anything else they want to add.
Jon Fansmith: Yeah. One of the things I'd start with, Mushtaq, is where you started, this wasn't unexpected. The administration's executive order, second executive order on DEI, directed the Department of Justice and the Department of Education, the Secretary and the Attorney General, to produce guidance within 120 days regarding institutions' obligations, compliance obligations under Students for Fair Admissions versus Harvard. This isn't quite that or isn't quite what we expected that to be, but they tipped their hand very clearly that this was an avenue that they would be pursuing, and that is to say they have an interpretation of what that ruling means and it's being promulgated through guidance. And as you noted, the guidance itself says this is guidance, it does not have force of law, this is not a formal regulatory process, it's certainly not statutory, it is merely their interpretation of what the law says. I think it's worth noting we would disagree strongly with their interpretation. I think as we've said before, a lot of courts will disagree strongly with their interpretation.
But first and foremost, the law itself has not changed since January 20th. Ted said that I think very persuasively at the top what the relevant laws are. It leaves us in this awkward position of an administration being very heavy-handed in terms of the threat of what compliance, 14-day notice, to come into compliance with their interpretation, the release of federal funds at risk. That said, just like the executive order, this Dear Colleague Letter contains no definitions of DEI activities, it did not highlight any specific instances of currently considered race-neutral practices that would under this interpretation be considered discriminatory. What it didn't really provide the guidance is supposed to do, hence, the name guidance, is provide clear explanations and understanding of what an institution's obligations are under the law.
I think we'll have that conversation about whether that was accidental or intentional, I know what my opinion is, but the whole point of guidance is to make it clear for regulated entities to know what their obligations are. And this, if anything, muddies the waters by so vastly expanding in such a short period of time, in ways that we're still trying to understand may not comply with the Administrative Procedures Act as well as there's a lot to unpack with this guidance letter, but maybe I'll throw it back to Ted, or to you Mushtaq for additional clarification on that.
Mushtaq Gunja: Yeah, Ted, I'm curious what your view is. Guidance is supposed to clarify, I'm not sure that it did that. Is that intentional? Is this lack of clarity around what constitutes “illegal DEI"-- and putting this in quotes for our podcast listeners later? Is this intentional or is this a mistake?
Ted Mitchell: Yeah, it's intentional, and I think that they have chosen to make very broad sweeping interpretations, not to mention broad sweeping allegations, about what institutions of higher education have done, have not done, and what we mean by those. And Paul Grossman started a line in the chat about, "Yeah, well, it's not law, but it still will guide OCR's investigatory and compliance regime." And that's right. But we have a couple bites at the apple before that starts to happen. They have said that we have to all toe the line within 14 days. Well, there will be an effort to move that, to expand that. There's nothing specific enough for us to be able to act on in 14 days, unless we just wipe the slate clean of all of the energy that we put behind, a variety of efforts that, in the end, will prove to be quite legal. So I think that's one. Two, I know that there are attempts underway to create some kind of injunctive relief even in advance of any OCR complaints.
And then finally, this is, in many ways, an invitation to all of us to drive their interpretation of SFFA back to the Supreme Court, to ask the Supreme Court to weigh in on how far their ruling extends into student activities, residence hall management, student clubs and organizations. And so I think in all of these ways, it's quite intentional, and I think that we will have opportunities to stand in the way of direct OCR steamrolling of our activities on our campuses.
Sarah Spreitzer: Ted and Mushtaq, can I ask... not a lawyer, can you talk a bit about Students for Fair Admission, the SFFA case that you're talking about? And one of the things that struck me in the letter was on page two, it says that this not only applies to our enrollment decisions, but it pertains to hiring, promotion, financial aid, scholarships, prizes, administrative support, graduation ceremonies, and all other aspects of student and academic life. So my very simple understanding of Students for Fair Admission is that that applied to enrollment and admissions decisions. So can you just take us back to SFFA? That was two years ago and I've already forgotten what happened.
Mushtaq Gunja: Yeah. Well, let me take a crack at this, and then Jon, Ted, Sarah, I'm curious if you have other reactions. And I'll answer that in just one second, but to Paul's very important point in the chat, he said, "This interpretation of the law will drive the enforcement priorities of OCR. What it says does matter." And I don't disagree with that, I think... we're certainly not saying that this Dear Colleague Letter doesn't matter, I think it does matter insofar as it telegraphs I think what OCR is going to be focused on. I think what we are saying, however, is that this letter does not carry the force of law. There are a few questions in the Q&A that indicate what should we do on campus to comply with this new law, and it's neither new nor is this letter law, all it is, is an indication I think of where OCR might focus. So just wanted to clarify that point.
On SFFA, Sarah, it was about affirmative action in admissions, and enrollment and admissions decisions. And actually, the way that the litigation was structured, it was relatively narrowly focused on those issues, and in fact, the plaintiffs in that case made it pretty clear that they were not trying to litigate the broader questions about affinity groups, and cultural centers, and speaker series, and all the things that we're going to talk about, I'd love to pose question to all of you about those areas in just a second, but that's not what was at issue there, and in fact, the Dear Colleague Letter acknowledges that. So third full paragraph, page two of this letter, "Although Students for Fair Admission addressed admissions decisions, the Supreme Court's holding applies more broadly." They're missing a little phrase there. In our opinion, the Supreme Court's holding applies more broadly because that is an interpretation of what the application of Students for Fair Admission goes to, but the court did not address that.
And indeed, the court, in a few places, made nod to the importance of institutional admissions, to the importance of diversity writ large. They just said that you could not consider race in admissions decisions... and I'm putting that in a little bit of shorthand, I should probably get the actual... the holding of the case. But I think that, again, this is an interpretation of Students for Fair Admissions, it is not the law, the law will get addressed in the courts over time, probably after some version of an enforcement action, but that's not what's at issue at the moment. This Dear Colleague Letter is an interpretation of Students for Fair Admissions, but it does not create new law.
Ted Mitchell: Yeah. Mushtaq, if I could just add, go back to one of the things that I said right at the top. I think that we have had... Sarah, it seems like a lifetime, but we've had 15 months to digest Students for Fair Admissions, and I know that a lot of campuses worked very hard to change their programs in order to meet the requirements of Students for Fair Admissions and a couple of comments and questions about recruitment. One of the things that was very clear in SFFA is that targeted recruitment of underrepresented groups was entirely appropriate, and underrepresented could mean rural students, it could mean Black students, but creating a diverse campus requires us to go out and talk to people. And so I won't say it's protected, but it's certainly not called out as something that is bad DEI.
And I do think that the attempt of this broad, broad, broad interpretation is to get us to pull back from things, that, against SFFA, against the 14th Amendment, and against Title VI, are perfectly legitimate approaches to doing what we know we need to do. So I know that this isn't easy, and I know that it feels like this will just continue to roll on, but I'm not sure that that's true, and I feel very strongly that there is no legal grounding for the interpretation that we see in the Dear Colleague Letter, and that will be proven true in court.
Jon Fansmith: I want to jump in too, because Ted and I had talked about this earlier, but Edward Blum who is behind Students for Fair Admissions was quoted in Inside Higher Ed yesterday saying, the SFFA opinion didn't change the law for those policies. So even the main protagonist behind the suit didn't see the same interpretation that the department seems to be taking in this area. And I really want to emphasize what Ted just said, every institution needs to make decisions in their best interests and understand the environment they're in, and the policies and programs you have in place will vary and how you manage them and the legal compliance, you subjected them to analysis, you subjected them to the 15 months since this precedent was handed down by the Supreme Court. The law has not changed. Do not rush to overreact to something like this, that is an interpretation of law.
Again, one likely not to be supported by many courts, we do worry about that. We worry that, as Ted said it, the intentionality of the uncertainty and the lack of clarity is to do just that, is to incentivize a response that may not be merited by what your actual legal obligations are. Every school has to assess that for themselves, we're not telling you do one thing or the other, but it is really important, as I feel like we've been saying on every one of these for the last month and a half, take a breath, respond calmly, seek expertise, consult your general counsel, your outside counsel, and move forward in a way that is consistent with your mission and your values.
Ted Mitchell: And as you seek that expertise, I want to call out with great respect and admiration the institutions in states where many of these things have been put into state law. And so there are... many of our colleagues have deep experience with this, and if you haven't been in touch with them, I think it would be worth your time to do so, and we'd be happy to help with that. Because again, many of these things are enshrined in state law, and so have been a part of the design principles for institutions for more than even the 15 months of SFFA.
Sarah Spreitzer: Yeah, Ted, I'm thinking of our colleagues in Florida, Texas, Iowa, I think they've all seen state... state legislation...
Ted Mitchell: Georgia.
Sarah Spreitzer: Yeah, in Georgia, state legislation, a lot of this where they've scrubbed everything in compliance with this state legislation.
Mushtaq Gunja: Friends, I want to ask about three topics that have come up in the chat, or in the Q&A. One is, "Okay, fine, doesn't have the force of law, then what's the deal with this 14 days? What do we have to do in 14 days in this very unrealistic timeframe?" It's question number one. Question number two, there are a series of questions about, again, affinity groups, cultural centers, that sort of thing. Do we have any thoughts about how that might play out on campus? And then third, there's a set of questions about HSIs, and HBCUs, and TCUs, institutions that are either federally designated or have a special mission by... into their creation, their mission, what do we know about that? Let's take them one at a time. 14 days, what exactly are we asking institutions... What is the department asking institutions do within 14 days, and what is our advice there? Jon, why don't I go to you first?
Jon Fansmith: Yeah. So one of the reasons it's such an odd question to answer is because there's not really a rationale for why 14 days, there is no compelling element of the Administrative Procedures Act that stipulates a 14-day notice. They're essentially saying, if you are not in compliance with our new interpretation of what the SFFA ruling means for the field of not just the DEI, but any campus consideration of race, then after that point... They're basically saying, we're going to give you 14 days to get in line with our interpretation. Again, that's not based on statute, that's not based on regulatory guidelines, that's not in the APA, that just seems to be a relatively arbitrary period they've identified. I'll also say that given... as they identified the scope of what they are talking about, and Sarah quoted it, it's basically everything that happens on the campus.
Given how much of a reverse from the existing understanding of discrimination law that's in place, the idea that in every institution in this country could meaningfully come into compliance with this interpretation, even if they wanted to, even if they should, both of which are big question marks, is just ridiculous. It would be impossible to comply... It would be impossible for most institutions to comply, let alone all institutions to comply. So the rationale for doing that, the rationale for doing that and tying it to the idea that, we may come after your federal funding, you can absolutely lose federal funding for violations of your civil rights obligations, but that involves a long involved process, including an investigation. It involves multiple points at which resolutions are directed, intended to be sought by the parties to address the concerns.
And it does ultimately allow for some checks by the judiciary as to what those determinations will be, casually throwing in a reference to, you might lose your federal aid if you're not in compliance with this 14-day window. That's an arbitrary construct. I think we get back to it, the goal is to sow chaos, the goal is to create fear, the goal is to incentivize action even where a more careful parsing of your legal obligations would indicate otherwise. So I guess that's my answer on that.
Sarah Spreitzer: Yeah, I would just say, Jon, I mean, just never say never. I'm also telling people to be calm and 14 days is not really a realistic timeframe to do anything, but what we've seen in the past where Title VI complaints go to the OCR office, there's a long investigatory period, there's a lot of back and forth between the department and the institution, and then there's a resolution signed. I don't think that's going to be the process in this administration. We've already seen the Department of Justice setting up a Title VI working group, which is focused on shared ethnicity or anti-Semitism, we've seen the Department of Health and Human Services launch their own Title VI investigations. And so I think that our institutions need to be prepared for that. But I agree, I think it's in statute that they have to do an investigation at least around a Title VI complaint. And so it's not going to be something that's sudden.
Mushtaq Gunja: Yeah. I have a couple reactions too. One, on the 14 days, not only is it I think... certainly, my opinion, I think all of our opinions that they are... this Dear Colleague letter is misreading the law as it relates to Students for Fair Admissions, but the 14 days is not just arbitrary, as you say, Jon, and unrealistic, but it carries with it a whole set of significant procedural problems under the Administrative Procedures Act and other parts of our procedure protections. And so I think we have a lot... if an action were to go forward and funding were to be pulled, I think that the arguments to enjoin that pulling of funding would be pretty strong, especially in the short-term, from a temporary restraining order, preliminary injunction point of view. The other thing, I guess, I will say is, and Ted said this up top, I think we can't see it enough times. This Dear Colleague Letter is an interpretation of our obligations under the 14th Amendment under Title VI, under the recent court case and Students for Fair Admission.
If you were in compliance with all of that on Wednesday of last week, you should still be in compliance post your colleague letter. Now, this is an individual case by case, campus by campus sort of determination, and I hope that all of you are in touch with your general counsel and you've done the work over the last 15 months to make sure that you're in compliance with Students for Fair Admissions. But I would expect that most of our campuses are in compliance with Students for Fair Admissions with the 14th amendment, with Title VI, and so we should be careful, but as everybody has said, we should not overreact and start pulling things down, because the chances are that your institutions may well have been thinking about this for the last year and a half.
Ted Mitchell: Just to add, I think a couple questions in the chat about, why do we expect this administration to play by the rules they haven't yet? And I think that that's a real concern, and I think that we have to rely on the courts, beleaguered though they may be, overwhelmed as they will be now that the Chevron case has created more traffic for appeal of administrative and executive actions, but our alternatives are really pretty limited. We can either comply... A number of you have asked how do we comply? Do we prove a negative? Now, you can't prove a negative, that's a part of this, and that's one of the reasons why this is such a ridiculous DCL, Dear Colleague Letter, and why I think we do need to stick together by reminding ourselves that if we did our work around SFFA the way we understood it, then we're not immune.
But we have a lot to stand on as we go forward and receive what undoubtedly will be complaints from aggrieved students, complaints from aggrieved faculty, complaints from others that we are or aren't doing something that seems to fit into this overwhelmingly broad set of activities. We're going to get those. And so I think everybody, as Mushtaq said, will have to assess their own risk and risk tolerance. State law will be an important part of what people need to take into account, so will the board of trustees and regents' decisions in these regards. So I don't think any of us is asking people to be foolish. Really, I think what we're asking people to do is to remain confident in your own decisions about how best to achieve diversity within the new design parameters set up by SFFA.
Sarah Spreitzer: Ted, if I was sitting on a campus right now as the GR person, I would probably go back to look at what my institution did immediately after SFFA to have that information about any changes that you may have made in your programs. Because I could imagine, if OCR launches an investigation against you, even if you don't agree with it, you're going to get questions from your congressional delegation. And I think to say to your congressional delegation, "Look, when SFFA happened 15 months ago, here are the actions that we took, here's how we reviewed our programs." I, at least, think that's one practical step you could take to prepare for whatever's coming down the line.
Jon Fansmith: And Mushtaq, it's probably worth mentioning we are about to hit the time limit, but I think all of us have cleared a little extra time so we can go longer than schedule, because I know a couple of people were saying they want to see some things addressed before the end. We have a little bit more time.
Mushtaq Gunja: Well, thanks, Jon. Let's do that. Why don't we hang for another 15 minutes or so, let's see how much of this... how many of the questions, concerns we can address. And let me just turn to student groups, speaker series, I've gotten a few questions in the Q&A about that. Student groups, a Black students' association that is open to all. Can we have speakers on campus that are talking about Black History Month, or are talking about the importance of diversity more broadly? Do we have a sense of... do you have answers to any of those questions, Jon?
Jon Fansmith: I don't think I can sit here and give a clear answer, and I saw some other questions about things like, "Can you teach about systemic racism or the history of racism in this country?" And I think the rational part of me would say, of course, you can do those things, but I understand why people are asking, because there is so much ambiguity in what they've said that it can lead to this interpretation of any mention of race, not necessarily even a policy based on a consideration of race, somehow be interpreted as discriminatory and contrary to Title VI. That said, it creates some other really confusing situations. The administration put on executive order around anti-Semitism directing all executive agencies use whatever authorities they have under their legal authorities to fight anti-Semitism. I would say, certainly, if you are not allowed to have student affinity groups, like at West Point where 12 or so student affinity groups, Black Engineering Students Association, things like that, were eliminated, where do you put something, like a Hillel Center on campus supported by institutional resources? Where would you have a Muslim student's association represented? What are the areas where shared ancestry, or ethnicity, or religion, or gender impact what we've long considered general practices? And that covers a lot of different possible implications. I think that gets... to some of this, what Ted has been reinforcing, the intentionality of the confusion. I don't think this is a well-thought-out approach to say, "We clearly understand where the lines are permissible under the law and where they're not." It is really meant to say, "We're going to throw so much fear and chaos into the situation that you'll start taking the kind of actions you fear will generate scrutiny from us, rather than trying to articulate where a clear violation of the law may be occurring." And so of course, the reasonable person says, "They can't possibly mean these," to my mind, not just benign, but helpful, positive aspects of campus life as the kind of things that fonder discrimination. That said, if the goal is to cause fear, who knows what the examples will be cited to drive the change.
Mushtaq Gunja: Do you all have a view about how the Dear Colleague Letter might affect HBCUs, HSIs, TCUs? I know they are not all in the same category, but do you have views on that question about those specific communities?
Sarah Spreitzer: I think that was pretty well addressed in SFFA, that if enrollment is open to all, then it's not considered problematic under SFFA. Now, if enrollment was restricted to, say, one race, one ethnicity, I'm not sure. But that's at least my understanding from what I've heard Ted and our general counsel talk about it.
Jon Fansmith: And I think there's a couple of things to unpack here. One is that minority-serving institutions have different legal statuses under the law for a variety of reasons. There's a couple of levels to that. HBCUs and TCUs have a specific federal designation, it's enshrined in law as to which institutions. Those are coming from a very real set of both different relationships with the federal government and also a creation under segregation. And so those categories exist independent of interpretations of civil rights laws, their status is that... The other Title III and Title V minority-serving institution programs, those are institutions that are eligible based on the percentage of students of a particular race or ethnicity that they enroll. Those are again created in statute. So Congress has passed a law that a president signed that created that, Congress appropriates money for the purposes of sending the funding those institutions. This Dear Colleague Letter does not change any of that. No executive order can change any of that. You need to have statute to change those things.
Could this Dear Colleague Letter be used to assert somehow that those programs may be discriminatory because a benefit is accruing to an institution on the basis of minority student enrollment, underrepresented population enrollment? It's really hard for me to see that that would hold up because, again, part of the effort that they focus on so much, the citing Gorsuch's concurring opinion about if a harm occurs to a student on the basis of race relative to another student, in this case, it's very different, the institution's receiving funds. So I don't want to... I get the concern, I understand the concern, there's so much word soup going on around race and what it means and what it calculates, to look at institutions that have that designation where race is central to the identification of the institution's mission.
Of course, be concerned, but that does not seem likely to me... also, say, in particular for HBCUs as a community that this administration has repeatedly talked about their support for, it's not for all other MSIs, but certainly, the HBCU category. This administration has made numerous both public and private overtures to that community and sought to support those institutions.
Sarah Spreitzer: Mushtaq, we had a question in the chat that I thought we should take up because it plays into how is this going to be applied. Can anyone submit a complaint against an institution? Does it have to be an impacted student or an impacted staff or faculty member? Anyone can submit a complaint. And in fact, we saw a lot of complaints being submitted during the protests that were taking place on our campuses following the October 7th terrorist attacks. And I think that this is something that's likely going to be... certain institutions are going to be targeted for things that the public believe are actually out of bounds or that have not been changed post SFFA.
And so I think our advice to institutions about take a deep breath, be calm, do a review, make sure what you're doing is legal, it's very important because things can be just targeted for how they're being perceived, and that there could be some larger issues at play here that it's not going to matter what you do, that they may target specific institutions or that they have certain axes to grind. I know that's not a very happy thought.
Mushtaq Gunja: I appreciate that, Sarah. And I think it's important for us to note that the complaint processes, it's an important one, and we need to examine the complaints that come in, and investigate and deal with them on a campus by campus basis. So no, I very much appreciate that.
We've gotten a couple of questions about legal challenges and what ACE is going to do. I might just take a quick stab at that and then see if Jon, Ted, Sarah, you have anything you want to add? I think we are keeping an eye on all of the possibilities and examining what the legal landscape is. The Dear Colleague Letter, again, because it's not law, it's not exactly easily challengeable without an actual case or controversy. At the point at which some institution has had some adverse action taken against it, then the case will rise to a point where we might be able to challenge it.
That said, we're definitely keeping an eye on what our possibilities are in terms of being able to take some sort of legal action. When I say we, that's ACE, that's the broader community, Jon and Sarah, I know that you're talking to all the time, that's our campuses as well. So nothing to announce at this moment. We and all the lawyers are looking at it as closely as we possibly can. Jon, Ted, Sarah, anything else you want to add there?
Ted Mitchell: Jon, you were talking with our colleague associations this morning about a community letter in response to their invitation to us to do so.
Jon Fansmith: Yeah, the DCL actually asked for public comments, provided the email address to do that. We will be preparing, on behalf of the number of our colleague associations, a letter offering comments that will probably not surprise people who've been listening to us for the last hour or so, reflect really just the very clear concerns we have with both the approach and the process that's been identified. We'll hope to have that out and over to the department by the end of the week. I think it's also worth noting there are a lot of currents... as Mushtaq touched on some of the limitations of an immediate legal action, but I want to emphasize the fact, and I've seen people talk about this, what can we do on campus? What are the things we can do? Yes, this is an administrative action. This is the administration acting in ways often without consulting Congress, it's still very, very important that you talk to your elected officials, and I'd also say at the state level, just as much as at the federal level, and communicate what this uncertainty and this confusion means for your campus.
It's true for research funding, it is true in the area of DEI and how you administer your campus programs, because we need as many voices raising up about the disruption, the harm that this causes from across the country. That may not shift the administration immediately, but that is the kind of thing that changes the debate and the narrative and adds to the cost of pursuing actions like this. So encourage you to tell your stories, especially to your elected officials.
Mushtaq Gunja: With just a couple of minutes left, let me see if, Ted, Jon, Sarah you have closing thoughts and any last pieces of advice? And I apologize in advance, I know that we didn't answer every question of the, I think, 178 questions that came in in the Q&A and the approximately 7 million posts in the chat, which I very much appreciate. I was trying to keep up with all of them, I'm not sure that I quite did. Ted, Jon, Sarah, do you have closing thoughts and advice for our campuses in this hectic time?
Sarah Spreitzer: I keep reminding people we've been through difficult times before, we're going through a difficult time, I'm always proud of our institutions for staying flexible and nimble and staying true to their missions of serving those students. And we'll get through this. So at least that's what I keep telling myself over and over.
Ted Mitchell: Yeah, let me volunteer to go next and leave you with the last word, Jon. I'm reminded I'm old enough to remember universities working to integrate in South Africa at the end of apartheid. And I remember how difficult it was for universities to stand up against the onslaughts of a very different regime. And one of my heroes is one of the presidents of one of the early integrators, and somebody asked him in a public presentation how he managed all of the stuff coming from the regime. And he said, "Well, I've decided that the only thing I can do is to flee forward." And so I guess my bottom line would be, let's all flee forward. Let's figure out what we can do for our students that is within the law, that matters to them, that matters to us, and can give us a sense of strength and purpose as we move forward and stand up to what really appears to be an onslaught of rules, regulations, et cetera, not just on this issue, but against higher education broadly.
Jon Fansmith: I don't know that I have much to add other than I love the concept of fleeing forward. And as Sarah said, it can be hard to keep calm, it can be hard to look at what's going on and muddle through, but I am really heartened by the passion, the effort, the work people are putting in in campuses, in DC, other areas. I remain optimistic that as hard as we are being pushed in this moment, that we have more than the ability, and the story, and the power to respond and rise above and move forward and flee forward. So big moments are ahead for higher education, and we're going to demonstrate the value and the purpose in what we do.
Thanks so much for coming. I think we hit somewhere near 5,000 people in this session. As always, we just really appreciate your support here at ACE and across the country, and your participation in sessions, your questions, your thoughts, your input, make it stronger and more valuable for all of us. So thanks again, and we'll keep you posted about the next one.