Republicans tighten their grip on higher education agenda

The United States midterm elections, which take place half way through a president’s four-year term, are unique among democracies. In the midterms, all 435 members of the House of Representatives and one-third of the Senate seats are up for election. Depending upon which state you live in, you may also be voting for the governor, state legislators and a myriad of local officials.

Last November, at the federal level, President Joe Biden’s Democrats increased their control of the Senate, while the Republicans took control of the House with a narrow majority of three.

At the state level, two Republican governors, Ron De Santis of Florida and Greg Abbott of Texas, who have been at the forefront of restricting tenure, banning the teaching of critical race theory and pushing for greater control over what professors can and cannot say in lectures, were re-elected, as were their Republican allies in each state’s legislature.

Federal level funding

For the first two years of Joe Biden’s presidency that began in January 2021, the Democrats controlled both the Senate and the House, which allowed the passage of the US$280 billion so-called ‘CHIPS and Science Act’, through which US$10 billion is being directed into regional innovation and technology hubs that include universities.

Additional money was directed to STEM education, both in the K-12 systems and community colleges and at the undergraduate and graduate levels. The bill also allocated funds for historically black colleges and universities (HBCUs) and other under-resourced minority-serving institutions.

Since the US Constitution gives Congress the “power of the purse” and stipulates that money bills must originate in the House, the fact that the Republicans control the House means that passing money bills – including such necessary measures as raising the US debt ceiling so that the government does not shut down or, worse, finds itself unable to pay debts – will be extremely difficult.

“Divided government,” said Jonathan Fansmith, assistant vice-president of government relations for the American Council on Education (ACE), “makes it harder to pass legislation. Moving from one-party control to divided government is going to add a degree of difficulty to getting any legislation that’s not specific to either party’s policies. That’s just the nature of how Congress works.”

Fansmith continued by laying out what the ACE believes are priorities for the 118th Congress. The first is the reauthorisation of the Higher Education Act (HEA). First passed in 1965 as a companion piece to the Elementary and Secondary Education Act, one of the bills in President Lyndon Johnson’s War on Poverty, the HEA has been updated periodically, most recently in 2008.

“The act is the primary piece of legislation governing how the federal government interacts with colleges and universities,” explained Fansmith. The HEA defines what information is to be reported to the federal government and how to do it, what’s included in agreements institutions reach to participate in the federal financial aid system, how those programmes work, and the formulas by which they allocate funding.

“If you think about the world and technology and how education was delivered in 2008 vs 2022, it’s pretty clear that we need to substantively, holistically take a look at higher education laws and make revisions in them to bring them up to date,” said Fansmith.

The challenge of divided government

Fansmith is hopeful that even in a divided government, the HEA can be updated because there are members on both sides of the aisle (Democrats and Republicans) who know the education files and care about them.

On other priorities, especially what he calls “big bills that spend lots of money or make very substantive policy changes”, Fansmith is less hopeful.

A good example of a big, expensive bill that almost everyone engaged with higher education would want to see passed is the doubling of the Pell Grant (from US$6,500 to US$13,000) that is available to the nation’s poorest students. An increase in the Pell Grant was included in Biden’s 2023 budget submitted to Congress last year but was stripped out of the bill in order to garner the support of senators Joe Manchin (West Virginia) and Krysten Sinema (Arizona).

In the 117th Congress, the Democrats and Republicans each had 50 seats in the Senate. The Democrats controlled the upper chamber because Vice-President Kamala Harris held the tie-breaking vote. However, senators Manchin and Sinema, who often opposed Biden’s spending plans, exercised outsized influence in having bills rewritten to accord with their conservative economic leanings.

Craig Lindwarm, vice-president for government affairs for the Association of Public and Land-Grant Universities (APLU), which includes such institutions as the University of Michigan and University of California, Berkeley, agrees that with the Republicans controlling the House, it is going to be almost impossible to double the Pell Grant.

“We recognise it’s not something that’s going to happen overnight. It’s not something that’s going to happen in one appropriations bill. But it should be a target and the APLU is requesting that Congress make significant progress in boosting the Pell Grant.”

Another issue Lindwarm thinks is vital is that Congress did not fund the scientific research part of the CHIPS and Science Act.

“The programmes, investments and research,” said Lindwarm, “are vital to boost US competitiveness and scientific research. The bill was left incomplete, despite being enacted, because Congress needs to follow up with actual funding for the research. Unfortunately, there was not a supplemental appropriations bill with funding for long-term scientific research.”

Funding needs of black universities

Lodriguez Murray, senior vice-president for public policy and government affairs of the United Negro College Fund (UNCF), discussed the great financial needs of the HBCUs.

He began with the federal government’s role in dealing with the existential crisis caused by bomb threats against HBCUs, their faculty and staff, and students. Fully one-third of the 107 HBCUs received bomb threats in 2022.

“This has been a unique occurrence in higher education,” Murray said, “because other institutions were not threatened.”

In addition to the financial cost – millions of dollars spent on protecting students, hardening campuses, improving internet infrastructure so that there is a firewall against the threats – the terror caused by a bomb threat goes well beyond inconvenience.

“The toll is measurable by robbing people of their peace, robbing people of their sense of community. It is an attack on people simply because of who they are and where they choose to go to school. It is nothing less than an all-out attack on them, on the most defining characteristics of who the people and these institutions truly are, and why they still exist today.”

Accordingly, the UNCF has called on the FBI and the Department of Homeland Security to work closely with state law enforcement to bring those who “perpetrated these acts of terror” to justice.

“Any individuals, including juveniles [such as the minor who was arrested in mid-November for dozens of bomb threats against HBCUs including Howard University in Washington, DC] and others that may be associated with this terrorism,” Murray said, “should publicly be brought to justice for the consistent, ongoing threats that are consistently and purposely imposed on historically black colleges and universities.”

Given the threat that hangs over HBCUs, I was not surprised to hear Murray call for new money to harden their campuses. Long-time watchers of the arcane politics of federal appropriations will also not be surprised to learn that the funds already appropriated for this purpose were dispersed to the states with little federal oversight. What followed was predictable: states used the funds to harden not the HBCU campuses, but the campuses of their flagship universities.

Supporters of HBCUs are hopeful that, while the 117th Congress failed to pass the Ignite HBCU Excellence Act, the incoming Congress will do so. If passed into law, Ignite HBCU will unlock hundreds of millions of federal dollars to update research facilities – that will allow some HBCUs to attain the coveted “R1” research designation.

The act would also provide money for building and improving dorms and other campus buildings. Finally, it would provide funds to improve security on HBCU campuses.

The Ignite HBCU Excellence Act is “the most transformative legislation for historically black colleges and universities ever”, one of the bill’s sponsors, Representative Alma Adams – a Democrat from North Carolina – told EdNC, the online newsletter of EducationNC, on 16 December 2022.

“For over 150 years, HBCUs have been agents of equity, access, and excellence in education despite being ignored and marginalised by federal and state governments. This historic bipartisan bill changes that.”

Freedom of speech

Kevin McCarthy (Republican, California), the [presumptive] speaker of the House, has not indicated that investigating campus free speech is one of his priorities.

However, observers expect that now that they have the power to summon the secretary of education and other officials from the Department of Education before House committees, the Republicans will pursue the investigation they signalled six weeks before the mid-terms when they demanded an investigation of the Department of Education for dispersing funds to institutions the Republicans said “suppressed free speech”.

At that time, ranking member of the House Oversight Committee Virginia Foxx, a Republican from North Carolina, sent the secretary of education a letter listing a number of instances when the Republicans believed the department was supporting institutions that censored students. The letter noted the spread of “cancel culture” and how it silenced mainly conservative speakers.

For his part, Lindwarm underscored that “the APLU is prepared to have that conversation about our values which are not just being accountable to the First Amendment but how free speech is consistent with our values and how we see free speech as being core to our mission”.

If Biden’s plans are stymied in Congress, he will turn to regulations to push some of his agenda forward. Fansmith expects Biden’s Secretary of Education Miguel Cardona to continue making changes to the regulations dealing with campus safety and sexual assault under Title IX of the HEA. “They’re able to do this through regulations,” Farnsworth explained, “because there is no statute from Congress in that area.”

As 2023 begins, Biden’s most ambitious regulatory effort, the writing off of up to US$20,000 of student loan-debt per person (US$500 billion in total) remains on hold following an injunction placed on it by the 8th Circuit Court of Appeals in St Louis, Missouri.

The case, which was brought by six Republican state attorneys general, two of whom were replaced by other Republicans and one by a Democrat in the midterms, argues that states will suffer financial harm under Biden’s plan. Specifically, the Appeals Court noted that the Missouri Higher Education Loan Authority, the entity that made the loans, will lose revenue if the loans are forgiven.

The injunction prevents the Department of Education from accepting any more applications for the debt forgiveness plan – though it did not order the federal government to destroy the more than 25 million applications already accepted. Following the Appeals Court’s decision, Biden issued an executive order extending the pause on debt repayments that then president Donald Trump put in place at the beginning of the COVID-19-caused financial crisis in March 2020.

Texas reforms

The re-election of Governor Abbot and Lieutenant Governor Dan Patrick and Republican majorities in both houses of the Texas state legislature will allow Patrick to move ahead with plans to “reform” tenure at the state’s public colleges and universities.

Last February, he stated that he was “outraged” by the 41-5 vote by the Faculty Council at the University of Texas Austin on a resolution in support of the teaching of critical race theory. He was “further outraged that the Faculty Council told the legislature and the University of Texas Board of Regents that it was none of their business what they taught”.

Patrick continued by sketching out his plans for tenure, which presently has professors being reviewed every six years, to an annual review. His statement concluded by saying that the law he intends to pass (now that the election is safely behind him) “will define the teaching of Critical Race Theory in statute as a cause for a tenured professor to be dismissed”.

In a statement on its website, the Texas branch of the American Federation of Teachers has indicated it will oppose Patrick’s plans, noting: “Tenure is important to safeguard academic freedom, which is necessary for all who teach and conduct research in higher education. When faculty members know they could possibly lose their positions because of their speech, publications, or research findings, they cannot properly fulfill their core responsibilities to advance and provide knowledge to students.

“Tenure provides the conditions for faculty to pursue research and innovation and draw evidence-based conclusions free from corporate or political pressure. The assurance of tenure is a critical component to the ability of colleges and universities to attract and retain the best educators.”

House Bill No 1006 – an Act relating to protecting expression, intellectual freedom, and viewpoint diversity at public institutions of higher education – does not amend the Texas Commission on Human Rights Act (TCRA), which protects employees from discrimination based on race, color, disability, religion, sex, national origin, age or genetic information.

However, the bill is cunningly written to exempt colleges and universities from the TCRA and, thereby, leave a prospective plaintiff with only one path of legal redress: federal courts. Due to the conservative tilt of the US Supreme Court, and the fact that many of the judges on the Texas bench are conservatives appointed by Trump, the chances of obtaining redress in these courts is less and less likely.

The act would amend the state’s education act to “prohibit funding, promotion, sponsorship, or support of any office of diversity, equity, and inclusion; and any office that funds, promotes, sponsors, or supports an initiative or formulation of diversity, equity, and inclusion beyond what is necessary to uphold the equal protection laws under the Fourteenth Amendment to the United States Constitution.” Additionally, the bill would prohibit the endorsement or dissuasion of, or interference with, any lifestyle, race, sex, religion, or culture.

The bill takes a leaf from those states that, following the US Supreme Court’s overturning of Roe v Wade which had established a federal right to abortion, passed laws allowing anyone to bring a case against a woman who gets an abortion or a doctor who performs one when it states: “A person may bring an action for injunctive relief against an institution of higher education to compel the institution to comply with this section.”

Writing on Twitter on 15 December 2022, Dr Catherine Weaver, associate dean at the LBJ School of Public Affairs at the University of Texas, Austin, and co-director of the Innovations for Peace & Development Program, said that HB 1006 is “a clear and unambiguous attack on freedom of expression by conservatives . . . who claim DEI (diversity, equity and inclusion) principles somehow violate their speech. This is a dangerous precedent that paves the way for future court cases that will boil down to the right to hate speech and a direct attack by the state on academic freedoms.”

Florida’s higher education agenda

Nine hundred miles east of Texas’ state capital in Austin, in Tallahassee, the capital of Florida, De Santis’s government is planning its higher education agenda. It is an agenda that De Santis, who was re-elected by a lopsided margin of 60% to 40%, is expected to use as a springboard in a run for the Republican presidential nomination in 2024.

On the top of De Santis’ list is appealing the injunction federal district judge Mark E Walker placed on the Individual Freedom Act (IFA), which had originally been named the ‘Stop the Woke Act’, in late November 2022. Walker’s decision called the law “positively dystopian” and summarised the state’s case as “professors enjoy ‘academic freedom’ so long as they express only those viewpoints of which the state approves”.

Before a three-judge appeals court, the State of Florida’s lawyers will argue against Walker’s arguments for staying implementation of the IFA. Walker found that the law was “void for vagueness” because professors who, for example, teach the history of race relations, could have no reasonable way of knowing when what they say in class transgresses a number of prohibitions, or takes the form of an argument rooted in critical race theory.

Judge Walker’s other ground for placing an injunction on the law is built on the First Amendment. However, instead of simply saying that professors are protected by the words, “Congress shall make no law . . . abridging freedom of speech,” he argued that their freedom of speech necessarily implies their students’ freedom to hear.

The right to receive information in a classroom “is a necessary predicate to the recipient’s meaningful exercise of his own rights of speech, press and political freedom,” wrote Walker in his 139-page decision that opens with a quote from George Orwell.

De Santis’ reelection means that the changes to tenure – which are similar to those planned in Texas – legislated last year will come into force. The law that altered tenure also requires that universities change accreditation bodies every five years.

According to Professor Judith A Wilde, research professor in the Schar School of Policy and Government at George Mason University (Fairfax County, Virginia), who has worked with two accreditation agencies, De Santis probably knows nothing about accreditation or how much work is involved in filing for it. It can take years to get accreditation and is an expensive process.

“You want an accreditation agency recognised by either the Department of Education and/or the Council of Higher Education Accreditation. If you’re not accredited by the federal government agency, you cannot get any federal funding for students,” said Wilde.

The Southern Association of Colleges and Schools Commission on Colleges, which presently accredits Florida’s public colleges and universities, has drawn the governor’s ire, Wilde explained, by starting an investigation into the University of Florida’s decision to seek an injunction against three political science professors who were serving as expert witnesses for plaintiffs challenging what was widely considered to be a voter suppression law passed in 2021.

Underfunding of black universities

The UNCF supports the process begun in Georgia in early 2022 that focused on the impact of underfunding the states’ HBCUs – and hopes that it might serve as a model for other states.

According to the US government’s Integrated Postsecondary Education Data System (IPEDS), between 1987 and 2020, HBCUs have been underfunded by US$12.8 billion. North Carolina A&T State University (Greensboro) has been short-changed the most at US$2.7 billion. Meanwhile, Fort Valley State University is the university in Georgia that has been underfunded the most, by US$577,000.

Underfunding, Murray pointed out, is not limited to the states that made up the old South. “We’re pretty much watching every state where historically black colleges and universities are located, whether that be as far north as Pennsylvania, the entire southeast of the United States and moving all the way through Texas and Oklahoma.”

The UNCF is hopeful, he said, that state legislatures have begun to see the value of these institutions, both as economic drivers in themselves and as launching pads for African Americans.

“These institutions are way more valuable than they ever imagined. If you look at their economic impact, on the most conservative side, the impact is north of US$15 billion a year. In many states, the institutions have more than a US$1 billion impact. When you put all of them together, they hire and fire like a fortune 500 company.

“They are not only the pride, but the economic powerhouse of African Americans. They are a social mobility engine, taking more people from low income and catapulting them into the middle class, at the very least. The case for funding them properly is made by the return on their current (paltry) level of investment, which is enormous,” said Murray.