Jon Fansmith: Hello. And welcome to dotEDU, the higher education policy podcast from the American Council on Education. I'm John Fansmith, one of your hosts. And I'm joined by my esteemed colleagues, Sarah Spreitzer and Mushtaq Gunja. Hey guys.
Sarah Spreitzer: Hey Jon.
Mushtaq Gunja: Hey, Jon, hey, Sarah. How are you guys?
Sarah Spreitzer: Great.
Jon Fansmith: You might note the lack of enthusiasm in Sarah's voice. We have been having some technical difficulties in bringing this podcast to you. But like true professionals we've got to soldier through what seems to be, at least D.C-wide, Zoom crisis. Anyway, we talked a little bit about this on our last episode, guys. There's been a virtual tidal wave of happenings in public policy in higher education public policy recently. And so we thought this episode, maybe it made a little sense for us just to sit down and review everything that's happened and what the outlook is going forward. And I think probably, we touched a little bit on the events of January 6th, but we didn't touch on some of the other things that have happened since then, which first and foremost, Mushtaq, the presidential transition, having served in an administration before, maybe you want to talk a little bit about what this new administration is looking at and the climate they're entering?
Mushtaq Gunja: Sure, sure. So we were so caught up last time in talking about the events of January 6th that I think we may have just mentioned in passing that the Dems won both of the Senate runoffs in Georgia, Jon Ossoff and, shoot, I'm blanking on his name. Yeah, Raphael Warnock. And because of that, Dems now control all three branches of government, though by very modest margins. So President Biden, of course, is president, the Democrats have a 50/50 tie in the Senate with Vice President Harris breaking those ties, and then a margin of six or seven seats, I think, in the House. That Senate control is sort of an interesting concept. I think as we've seen over the last really 24 hours, Senator Schumer and Senator McConnell have come to an agreement, though, it took some time about who was going to control some of the Senate committees and what the power sharing agreement was going to be.
All of this was wrapped up in whether the filibuster was going to be on the table for removal or at least some significant curtailing. But it looks like the
filibuster is at least for now here to stay. Senators Manchin and Sinema came out and said that they were not in favor of eliminating the filibuster. So, I think this means that President Biden and the Department of Education really have sort of three main ways in which they can effect a change. The first is through trying to pass legislation, the second is through budget reconciliation, and the third is through executive action. And I assume that the administration will try to get parts of their agenda passed through all three. We certainly saw in the first few days of this Biden administration a flurry of executive actions on topics that are wide ranging, but many of which affect our campuses. So some of those are quite good news and things that we were pushing for. And I'd love to ask you a little bit about them, Jon and Sarah, because I think you guys have been following them a little bit more closely than I...Go ahead, Sarah.
Sarah Spreitzer: Sorry. I was just going to say, it might be helpful to explain why the filibuster is important, because I think that it's a rule that folks don't know a lot about. But what it really means is that to pass legislation or large pieces of legislation, you need 60 votes in the Senate. So 50 votes only gets you part of the way there, right?
Mushtaq Gunja: Yeah. I mean, that's exactly right. And in these such partisan times, very few major pieces of legislation get bi-partisan support and support that's more than 10 members of the other side. So I think the Biden administration is certainly going to try to pass the recovery act, their coronavirus relief bill through regular legislative order. And they'll lobby hard to see how many Republicans they can get, but we'll see if they end up actually being able to pick up 10 Republicans. Jon, you've been working this. Do you have any sense of how likely it is that we see a major piece of legislation on the recovery side with 60 votes?
Jon Fansmith: Yeah. And I know we'll go into that in a little bit more detail too, but you both have said it right. 50 votes gives you the majority have the President and the Vice President to break ties, but it doesn't give you the ability to move bills at will. And I think this stimulus bill that the Biden administration promised is going to be a really good early indicator of what we're likely to see over the next few years. The other aspect of this with these very narrow margins is that, when you have big margins, you can afford to lose some members on a position. You can afford to say, well so-and-so is here, that's not really where we want to be, but that's okay. We don't need their vote on this one. With a 50/50 split in the Senate, and it's true for both caucuses. It's more of a problem obviously for Democrats in the majority. Every single member has to have their concerns addressed. And when you think about how Congress has put together legislation recently, it's always been around emergencies. It's always been these giant packages that contain hundreds or thousands of elements.
The degree of difficulty to shepherd that through now goes up exponentially when you can have one member simply say, look, I don't like this. I object. I don't want to join the other 49 members of my caucus in moving this forward. You mentioned some of the moderates, Senator Manchin and Senator Sinema. They have enormous power now because leadership has to address their concerns first and foremost. They can't simply rely on their caucus to move a bill. So a majority is certainly something that Democrats are sure much happier to have than being in the minority in the Senate, but I don't know that they have that much authority to move things. But you know, we'll talk about the stimulus bill. I think the pathways forward for that are going to reveal a lot about where this Congress is. And, Sarah, I know, speaking of the Senate, the split, the Democrats taking the majority, that also means a lot for the committees we work with in the structure of those and what that's going to look like.
Sarah Spreitzer: Yeah. And the Senate is somewhat delayed, right, because of the conversations about the filibuster. And the negotiations between Senator McConnell and Senator Schumer means that they haven't even done committee assignments yet, right? So we have a sense of who will be the chair and the ranking members of the HELP committee, obviously, is very important for higher ed. So we believe-
Jon Fansmith: And HELP is, for people who don't listen.
Sarah Spreitzer: Sorry, health, education, labor, and pension. And that's the authorizing committee for all of our education programs that we care about. And so we believe that it will be Senator Murray will be the chairwoman of that committee. She's a longtime advocate for higher education. But we will have a new ranking member because obviously we lost Senator Alexander who was the senior Republican on that committee. And we expect that it will be Senator Burr from North Carolina, who's worked with higher ed on some issues before, but I don't think has been as active, I think, on some of the higher ed issues that we've worked on. And the other thing is that the staff switch from minority to majority. So the staff that we work with on the committee are changing. And obviously there will be more staff on the majority. And we've also seen staff going to the White House and to the Department of Education. And so there's some big changes going on at least in the Senate with the Senate HELP committee.
Jon Fansmith: Yeah. And I think it's interesting in the Senate, there is a switch of control, so there's going to be some transitions, obviously new leadership and who holds the gavel. The house it's less so. Bobby Scott will remain Chairman of the Education and Labor Committee, which is the equivalent of HELP on the house side. And so you don't necessarily expect to see a lot of changes around the membership, certainly on the majority side. On the minority side, they are making committee assignments. One of the things that's been, I think, frustrating in some ways, for people who work in the policy space around education has been, this used to be a very bipartisan committee. They had different views about the best ways to do things, but by and large had a committee membership on both sides of the aisle that wanted to accomplish certain things and had shared goals even if they had different ways to get there. In the last few congresses, we've seen a lot more partisan members joining this committee. And a lot of the positions they take tend to be less consensus building and more strident in the viewpoints of the respective parties. I think we've seen some of the committee assignments now and the education labor committee assignments. And you never know, right? We haven't worked with some of these members. There's a lot of new members, 11 new members to the committee on the Republican side who may have very different views. But certainly based on campaign rhetoric, there's a few who are quite strident in their viewpoints. And so it seems likely we'll see a continuation of that.
Sarah Spreitzer: Yeah. I mean, even within their caucus. So folks that were just named to Ed and Labor recently, I'm thinking about freshmen Madison Cawthorn from North Carolina. I mean, even within the Republican caucus, he's been outspoken and is not likely to fall in line with party policies.
Jon Fansmith: Marjorie Taylor Greene who wasn't sponsored by the national party during her candidacy. So there are people who clearly have some strong opinions. And right, I think that's a great point, aren't necessarily going to heed what leadership or committee chairs or ranking members may want them to do. And I think the other thing we've seen, and you made a great point, Sarah, the staff and people outside of DC who don't necessarily deal with this on a regular basis, probably underestimate how much of the heavy lifting of policymaking congressional staff do. And you see it time and again, whenever there's a new administration, jobs open up for the party that was out of power and you start to see a lot of shifting. And that's obviously great for the people involved. These are people who have worked very hard. They have tremendous amounts of experience, expertise in these areas. They move into the Department of Education, the White House. They carry that expertise with them. And that helps the policy-making process at that end. But you're losing all that expertise out of Congress. And so there's other staffers who step up, but it's an influx of new people. There's bit of a transition and adjustment to doing that. And it's a very busy time having those gaps, maybe lacking some of that institutional knowledge. It's going to start showing in the policy-making process. And Mushtaq, I referenced this already, you were in the Education department. We know very little about the people who will be making policy, higher ed policy, at the Education department right now. Can you just tell the listeners a little bit more about what we do know and sort of what we expect to see around Education department staff?
Mushtaq Gunja: Sure. So we have, as I think everybody knows, we have a Secretary of Education designee Miguel Cardona. And recently the administration put forward a nominee to be deputy secretary, Cindy Martin, who I believe was the Superintendent of Schools for the San Diego Unified School District. So, the top two positions are really folks that are pretty focused on, at least by experience, have the bulk of their focus on K-12 education. That's not unusual. The Obama administration did the same thing. But neither of them are super deep in higher education. So I think what that means is that we are waiting for an undersecretary of education nominee who will be focused primarily on higher education. We don't have that person yet as a nominee, but I would assume that that will come soon. And that's partially because there are so many higher ed issues that need to be sort of dealt with quickly. In the meantime, I think some of the decision-making processes will shift to the White House and to the domestic policy council where they have made some decisions about staffing. Some fantastic folks are moving both to DPC and to OMB with the sort of wealth of experience on higher ed issues. So that's good. I mean, I think both of you are exactly right. What is the administration's gain is a little bit of the Hill's loss. And what that might mean is that a little bit more of the action over the next month or so will be in the executive branch and a little bit less so in the legislative branch, and we've seen this already with the flurry of executive actions.
Sarah Spreitzer: Yeah. 33 executive actions so far and we're less than a week into this administration, which we can't even believe. I mean, I think I've said this many times before, that seems like at least a month has passed in one week, but I can't believe we're only six days in and there's been
33 executive orders.
Jon Fansmith: Yeah. I would point out, the statistic I like was first that the previous record for most executive orders on the first day in office was five. The Biden administration did 17 on their first day in office. And as Sarah pointed out, we're six days in. 33 have been offered. And as we record this, there's still plenty of time left, so that number may go up. They're averaging more per day over the first week in office than the previous record done on the first day. So it's a blistering pace of executive actions. But
a lot of these are things that we have been pushing for. Mushtaq, you referenced this, but there was a whole number of things that our policy priorities of higher ed that they did address through executive action. I don't know, Mushtaq or Sarah, if you want to touch on some of those.
Sarah Spreitzer: Well, I was going to say, some of them aren't proactive policy. It's really reversing some of the things that were done during the Trump administration that were done by executive action. And so one of the first things was overturning the Muslim travel ban, which was obviously a big concern for higher ed in our international students and scholars. And then, an executive order to preserve and fortify DACA, which is important because obviously the court, the Supreme Court, left DACA operational under the Trump administration. So this is directions to the Secretary of Homeland Security and the Attorney General on what can they do to actually improve or fortify DACA through executive action, through policy, through the agency. And that will be interesting to see once Secretary Designate Mayorkas gets confirmed. But then also important for higher ed, they also repealed the race and sex stereotyping executive order, which obviously we were very concerned with and how that was going to impact universities and colleges and some of our diversity programs.
Jon Fansmith: Just something that they did last year that there was just, I think, widespread concern across campuses, because it would have applied to all federal agencies, as well as all federal contractors. And as we know, lots and lots of colleges and universities are federal contractors. So while I don't know that there were a lot of concrete steps taken behind that executive order, and correct me if I'm wrong, certainly the messaging of it that touched on basically how you handle issues of race and training and other issues around employment was very problematic, very concerning, especially if we had seen four more years of the Trump administration, what that would've looked like.
Mushtaq Gunja: Yeah, I think that's right. And even if there weren't immediate enforcement by the Trump administration, the mere threat of it sort of hanging out there, I think, caused some of our campuses to sort of take a little bit of a pause in developing some of their diversity equity inclusion plan. So I think this is certainly good news. It's certainly something that ACE and other higher ed associations were asking the Biden administration to do and we're very happy that they did. The other sort of executive action that the Biden administration took that matters a lot for higher ed and our students was the extension of the student loan payment moratorium, which I think was due to expire on February 1st, and the Biden administration moved that out to the fall. I think it's October 1st, maybe it's October 31st. Out several months. So that's very good news as the Biden administration tries to come in, both stabilize the loan system a little bit and I expect that they will take a very hard look at the student loan servicing system too, because I don't think it is as easy as sort of just, you turn on a switch and then all of a sudden the loans get collected. There's quite a bit of apparatus to be able to make sure that the student loan servicing system is working correctly. And so, the Biden administration has bought themselves some time and I think that that's good news for borrowers and for our students.
Jon Fansmith: So the other thing I think, Mushtaq, is really interesting about this too, is there was a lot of discussion coming into the Biden administration about loan forgiveness, particularly this debate that, did the Department of Education actually have the authority to simply forgive everyone's loans unilaterally without congressional action? And President Biden actually sort of tamped that down a little bit after his election and said, I support Congress doing something to eliminate $10,000 of student loan debt." Very clearly shifting the emphasis as to who should be responsible for moving that forward, but there was still a lot of hope that on the first day there might be widespread loan forgiveness. I also think your point about the mechanism of managing student loans. I mean, keep in mind, these are 44 million borrowers who were in repayment. This last statistic I saw was, only 11% of those borrowers are continuing to make payments during this pause. So if you think about nearly nine out of 10 borrowers came within about 10 days of having to resume payments and the various multiple servicers the Department of Education oversees, the potential for havoc there was very high. I think even ED's internal inspector general found the report that millions of borrowers might be tossed into default simply because the systems weren't going to be ready be turned around within that period. So huge. Honestly, of all the things day one you can do by executive action, if you think about addressing the financial health of 44 million people, we tend to reference it as an important development, something that's helpful, but the scale of it actually sometimes gets underestimated. It is a massively impactful action.
Sarah Spreitzer: Well, and it doesn't mean that that's all that they're going to do too on student loans, right? We know that there's things that they can do on the executive side to address borrower defense, to address public service loan forgiveness, things that weren't really happening in the last four years with a department that was not forgiving loans under existing programs. So there's also a lot that can be done there. That might happen once folks are in place at the department.
Jon Fansmith: Yeah. And I think it's actually, go ahead, Mushtaq.
Mushtaq Gunja: Let me just say, I think that's right. And if there's one surprise that I sort of encountered when I came into the department was how much time the Office of the Undersecretary Ted Mitchell and all of us on his staff sort of ended up spending on things related to
student loans. You sort of come in thinking that you're going to be working on one thing. Innovation, teaching best practices. And it turned out that we spent enormous amounts of time on the mechanisms of the loan program and making sure that it worked. And so, I think you are right, Sarah. This is not the last thing that we are going to hear as it relates to student loans, both on the mechanics and also on the forgiveness side. It's true that President Biden didn't forgive a lot of loans on day one, but I think there will still be energy, at least on the left, to try to make something happen on that loan forgiveness side.
Jon Fansmith: Yeah. And I think one of the things we know that will be a priority of this administration, and clearly they need to staff up and they need to get their feet under them, because we've talked almost explicitly about things they have done in the short-term. Things they can do through executive action. They have a lot of longer term policy goals. And I think, when you look at things like gainful employment and borrower defense, these are regulations that deal with accountability for institutions ensuring in the gainful employment side that programs and institutions actually prepare their students to earn a living with the degrees they provided. And then the borrower defense to repayment gets right at forgiveness. It essentially allows students who have been defrauded by the institutions they went to to have their loans wiped away. Those were Obama administration regulations. They were wiped out by the Trump administration. We know they're going to put them back into place. And that will have the potential, even without some sort of specific loan forgiveness front, to help a lot of borrowers who are really struggling and really didn't gain anything from their experience in higher education. So those are sort of longterm outlook things. The other one I should touch on here, which obviously is critically important, is the Trump administration towards the end of their time passed new Title IX regulations into effect. Those took effect in the beginning of August. It has been a clear priority of the Biden team to do something about that. I will not pretend to be an expert in this area. If either of you want to step forward as an expert, please rescue me. But I think what I have always understood to be is that, unlike many other efforts by the Trump administration, on Title IX they did pursue a fully administrative procedures act compliant.
They followed the rules, they went by the books and they put that in place in a way that has survived a number of early legal challenges. So to undo it is going to take more than an executive order. It's going to take more than a court challenge. It'll take a full new regulatory process, which takes time. So if you are hoping to see changes in that area and see them quickly, ACE certainly has significant major concerns with what the Trump administration did. Unfortunately, it doesn't look like that will be happening anytime soon. They're going to have to work a very detailed process to make the changes we think are necessary there.
Sarah Spreitzer: But I would say to that, Jon, I think it will take some time, but I wouldn't discount the kind of priority that this is for President Biden. When he was Senator and when he was Vice President, he worked very closely on these issues. And I can remember being on a general call when they were rolling out the Obama era guidance, and he actually got on the phone with higher education advocates to say, this is important. This is one of our top priorities. It should be important to all of you. And so it's going to take longer because those final rules were in place, but I think it's going to be a huge priority for, not just the Department of Education, but for the White House also.
Jon Fansmith: And there's a number of other priorities, and we're coming back a little bit to where Mushtaq started us off. But beyond the regulatory side, obviously, there are legislative priorities. And Sarah, when the executive order came out that was fortifying and preserving the DACA program, the other thing that accompanied it was a comprehensive immigration proposal. This would be a legislative proposal. It would have to go through Congress. You want to tell people a little bit about what that bill looks like and maybe what the outlook for it is in Congress?
Sarah Spreitzer: Sure. I mean, I don't think the text of the bill is out there yet. It's called the U.S. Citizenship Act. And it is comprehensive immigration legislation, meaning that it addresses all areas of kind of the immigration portfolio and addresses a lot of the things that have been needed to be addressed in the last decade really, including making DACA permanent, allowing for a path to citizenship for DACA and our dreamers, looking at merit based immigration, looking at the backlog for green cards, really updating and improving some of the existing programs. But it's a really big piece of legislation. And we've seen comprehensive immigration reform try to go through over the past decade. And even though there's been bipartisan support for it, it still hasn't happened. And we're already starting to get indications from the Senate that they're likely to move it in sort of a piecemeal fashion. And so that means that, if it's not moved in a comprehensive fashion, then you may lose some of the things that's being proposed by President Biden. But we continue to be very hopeful because of the bipartisan support that at least perhaps the Dream Act, which would make DACA permanent and provide a path for citizenship for our dreamers, will be one of those things that's considered. And we know that Senator Durbin, who's been a longtime champion of the Dream Act, and is likely to chair the Senate Judiciary Committee, that he is planning to re-introduce the Dream Act separate from the comprehensive immigration legislation.
Jon Fansmith: And I think I can guess based on your answer that you think the odds of the comprehensive bill moving forward is pretty much nil, right?
Sarah Spreitzer: Yeah. Unfortunately, yes. I mean, I think it's really something that's needed. It's something that's been needed for the last decade. Look, we have issues with our international students that we've been trying to push for a long time that we'd like to see dual intent for them. So when international students come in and they're asked about the question, do you intend to immigrate to the U.S., that they would actually be able to say, sure, maybe, and have that option open as opposed to it being rejected just for saying I might be interested in trying to find a job or remain in the U.S. after my education. But that can't be done unless we do it through legislation. And the only way that you're going to get a lot of these issues through is through a comprehensive bill.
Jon Fansmith: And I was teeing up a little bit the idea of the nil chances of it moving through Congress. Because the other thing that's looking increasingly bleak in terms of moving through Congress is another signature proposal to the Biden administration, which is what they're calling the American Recovery Act. Like the immigration proposals, there's not currently legislative texts. It hasn't been introduced as a bill. But they did put out a pretty detailed, about a 17 page summary, of what would be in this. This is their next COVID relief bill. And it would spend roughly $1.9 trillion to do things like enhance distribution of the vaccines, accelerate testing, a large range of economic stimulus issues, and most importantly obviously to our listeners, it would also provide $35 billion in support for higher education. People who listen to this podcast have heard me say many, many times that we have identified about $120 billion in need. And while we got $23 billion in the last COVID relief bill, that still leaves $97 billion in need. So $35 billion is a lot of money. It will go a long way, but it's less than half of what we think students and institutions need. The other thing that was interesting about that pot of money is, in the summary that the administration put out, they seem to indicate that private nonprofit institutions wouldn't be eligible to get any of that money. And that was a real break, not just from how the previous two relief bills have gone, but frankly from 60 or so years of federal policy of support of higher education, where public and private nonprofit institutions have enjoyed the same legal status and same benefits of federal programs.
We are very hopeful as we record this, somewhat confident as we record this, that Congress, when they put together the actual legislative language, will make sure that all public and private nonprofit institutions will be eligible to benefit. Obviously no guarantees, but I think that Congress certainly understands the importance of making sure those institutions are included and the final bill will reflect that. The other place, and I think I'd just leave it here on the American Recovery Act. Mushtaq and I had a little back and forth earlier about what the margins mean for the administration's priorities. And we are already seeing that play out around this bill. As soon as it was introduced, this overall price tag of $1.9 trillion, you started to see Republicans say, look, it's too much money. It's too much money in certain areas, it's too much money overall, it's not something we can support. President Biden had wanted to do this in a bipartisan manner. They built a bill, frankly, that was intended to be able to draw bi-partisan support. It was not as big as previous bills that had offered by house Democrats that were $3.3 trillion, almost twice as much. I think what we found is there's two paths forward for this bill. One is to radically slash the overall cost and eliminate certain categories of money. And that may be able to get you bipartisan support. The other is reconciliation, which we touched on before. We frankly don't have enough time to go into all the ins and outs of reconciliation. It is an incredibly complicated congressional procedure. But the long and the short of it is it allows you to move bills through the Senate with a simple majority. So, as the filibuster has been preserved, that's a functional block on a lot of democratic priorities, but reconciliation remains the one option they could use to do that. There's lots of limitations about what you can do on reconciliation. You have to offset the spending, has to comply with a whole lot of procedural rules that are very arcane.
So it's not something they can simply do for whatever bill they want to pass. It really has to be limited to bills with major spendings and savings implications. But it's increasingly looking like Democrats have decided, we simply can't meet what would be necessary to get bipartisan support and that reconciliation is likely to be the way to go. Trying to hustle through this. It is complicated and obviously there's a lot of ground to cover. These are very detailed, complicated issues, and there's frankly a number of things we didn't touch on. But luckily we're going to have guests further down the road on other episodes of dotEDU to talk about those. Mushtaq, Sarah, thank you so much for coming on and joining me again and going through a massive amount of information in a very short period of time.
Sarah Spreitzer: Great seeing you guys.
Mushtaq Gunja: Yeah, my pleasure. I can't wait to dig into the ins and outs of reconciliation and all the strategy that sort of goes behind the positions that the Republicans and Democrats are going to take here. It's going to be an action packed few months, I think.
Jon Fansmith: Action packed. And we're going to try and stay on top of it all. And Mushtaq, I have some CRS reports I'm happy to share with you about the reconciliation process, if you want.
Mushtaq Gunja: Awesome.
Jon Fansmith: All right, thanks everyone, and we'll be coming back to you with our next episode later. To listen to earlier episodes and subscribe to dotEDU, you can find us on
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