Volume 6: Issue 3

After 5 years….Higher Education Reauthorization

The Higher Education Act of 1965, most recently changed in 1998, was to be reauthorized in 2003.  On July 31, 2008, after being stalled in many long negotiations, the Higher Education Reauthorization Bill was finally passed by a large majority in the House and Senate.

Overview of the Bill

The Higher Education Reauthorization Bill (Higher Education Opportunity Act of 2008), has more than 400 new reporting requirements and 64 new programs.  The themes of affordability, accountability, and opportunity are intended to be reflected in each provision. Yet, in my review, there are many provisions that do not meet those three themes and with over 400 new reporting requirements, one could argue accountability is taken a step too far. Specifically, Congress’ language on accreditation prevents the Department of Education (DOE) from issuing regulations to ensure institutions are measuring student learning outcomes. That language drew praise from many institutions and associations because it appeared the DOE was moving to create federal standards of learning for institutions.

Status of the Bill

As of August 5, 2008, the President had not guaranteed that he will sign the Bill in the immediate future.  The White House released a statement noting there are “revised provisions” through conference that have to be reviewed before a signature will be scheduled. So how does this impact when we, as student affairs professionals, must begin to follow these new 400 plus regulations? The Bill has provisions within each title that say enforceable upon enactment which means when the President signs the document. However, most of the student loan provisions (Title IV) will have to go through the process of “rulemaking.” (See footnote below for a description of the rulemaking process). For those provisions that must go through rulemaking, it could take a year or two before they are in place. Once Congress passes the Bill and the President has signed it, it then shifts to the DOE for rulemaking.

The Consortium of Government Relations on Student Affairs worked with Congressional delegations on fire safety language, meningitis reporting, missing student reporting, emergency notification language, campus safety issues, veterans’ issues and many others over the past several years. On most fronts the Higher Education Consortium was successful in articulating the challenges and concerns with what was, in most cases, more rigorous language than what is in the completed Reauthorization Bill and supporting the programs we knew to be beneficial and provide new quality program opportunities. Our test will be to articulate and report effectiveness of all of these new regulations when the next reauthorization begins. An important consideration as we work with this language is to determine our ability to wait five—or possibly additional—years before these issues are addressed again in our changing education communities.

Selected Provisions for Student Affairs Professionals to Closely Watch:

Protection of Student Speech and Association Rights – Sense of the Congress to protect students’ speech and association rights emphasizing that colleges should facilitate the free and open exchange of ideas and that students should be treated equally and fairly.

Drug and Alcohol Abuse Prevention – Institutions will report drug and alcohol-related violations and fatalities that occur on campus and that are reported to campus officials

Transparency in College Tuition for Consumers – An institution’s “net price” will be calculated based on a number of variables which will be reported by each institution and compared to other institutions in the same categories.  “Net price” is defined as the average yearly price actually charged to a full-time, first-time undergraduate student receiving student aid, calculated by subtracting average grant aid from federal, state and institutional sources from the cost of attendance. Cost of attendance means the average cost of tuition and fees, room and board, books and supplies, and transportation.

Textbook Information – The textbook provisions are intended to decrease the cost of textbooks by requiring publishers to provide faculty with price information, copyright dates of all previous editions, substantial current revisions made between current and previous editions and to disclose whether the textbook or supplemental materials are available in other formats. The provisions also require “debundling” of products.

Student Database – The Bill prohibits the development and implementation or maintenance of a federal database of personally identifiable information. The Bill does not prohibit a state from developing a database for tracking students over time.

Maintenance of Effort – This provision requires that states must have maintenance of effort to receive funding under College Access Challenge Grants. State funding for public institutions must not be less than the average amount provided during the five most recent preceding academic years. 

Pell Grants – The provisions institute a year-round Pell grant and authorizes the increase to $6,000 for 2009-2010 and a $400 per year incremental increase to $8000 for 2014-2015.

TRIO Programs – The program has been extended another four to five years with an increase in grant amounts to $200,000 with the evaluation grants raised to $170,000.

GEAR-UP – The program is maintained removing the requirement that eligible entities “provide or maintain a guarantee to eligible low-income students who obtain a secondary school diploma or equivalent, of the financial assistance necessary to permit the students to attend an institution of higher education.” The provision now includes students with disabilities and the duration of the grant to move up to seven years.

Child Care Access Means Parents in School – These provisions increase the grants to $30,000 and align qualifications with Pell grant and the institutional Pell grants awarded eligibility from $350,000 to $250,000.

Consumer Education Information – The Bill requires guaranty agencies to work with institutions to develop and make available high quality educational programs and materials to provide training for students in budgeting and financial management, debt management, and financial literacy.

Peer to Peer File Sharing – Institutions are to make available to all current and prospective students the institution’s policies and sanctions and all plans to detect and prevent information related to copyright infringement, including a description of actions taken by the institution to detect and prevent the unauthorized distribution of copyrighted materials on the institution’s technology system.

Meningitis Vaccinations – Institutions will be required to make available to current and prospective students their policies regarding meningococcal vaccinations.

Campus Security and Local Law Enforcement Relationship – The Bill amends the Clery Act to require greater coordination between campus security and local law enforcement.  This is to include whether institutions have agreements for the investigation of alleged criminal offenses.

Hate Crimes – Four crimes are added to the list that institutions must report as “hate crimes” in cases where the victim is intentionally selected because of their actual or perceived race, gender, religion, sexual orientation, ethnicity or disability.  This is done so that institution reports on campus crime match the FBI’s Uniform Crime Reporting Program.

Campus Security and Emergency Response – The Bill requires institutions to make available to current and prospective students a statement of current campus policies regarding immediate emergency response and evacuation procedures to notify the campus community of a significant emergency or dangerous situation that poses a threat to students and staff.  Campuses are to immediately notify the campus community upon the confirmation of said significant emergency or dangerous situation, unless issuing such notification would compromise efforts to contain the emergency. The statement of emergency policy should clearly articulate a method to promptly determine whether incidents pose an immediate threat to the health or safety of students or staff.  The statement should include a method(s) to initiate dissemination of the required emergency notifications immediately and without delay following a professional determination by law enforcement or other authorities that an emergency exists.
Campus Safety Programs – The Bill will require institutions to develop and implement state-of-the-art emergency systems and campus safety plans, and requires the DOE to develop and maintain a disaster plan in preparation for emergencies. The Bill creates a National Center for Campus Safety at the Department of Justice to work in collaboration with the COPS Program. It also establishes a disaster relief loan program to help schools recover and rebuild in the event of a disaster. 
Transfer of Credit Policies – Institutions participating in Title IV will be required to publicly disclose its current transfer of credit policies and any evaluation criteria used to evaluate the transfer of a credit from another institution and a list of institutions with which the institution of higher education has established an articulation agreement.

Fire Safety Reports – Institutions must report and make public annual fire safety report including all fires, damages to facilities, and fatalities. The report will include current status of fire safety equipment in residential facilities, requirement of fire safety policies and education, and an open log of incidents. The Secretary will make policies public including the installation of fire detection and prevention technologies in student housing.

Managing Reports of Missing Students – Institutions will be required to implement procedures for managing reports of missing persons. A policy must be established for students who reside in on-campus housing that includes notification to the student that the institution is required to notify a parent or guardian 24 hours after the time that the student is deemed to be missing in accordance with official notification procedures established by the institution. 

Drug Related Offenses - Institutions will provide each student, upon enrollment, with a “separate, clear, and conspicuous written notice” that provides information on the penalties associated with drug-related offenses. Institutions will also provide to each student within two weeks of being notified by the Secretary that the student has been convicted of a drug-related offense that resulted in the loss of eligibility of Title IV aid with a separate, clear, and conspicuous written notice that notifies the student of such and outlines ways to regain eligibility.

Disability & Military Programs - Numerous new programs have been established through this Bill to aid many groups of students.  Pilot programs will be established to benefit students with disabilities that are transitioning into an institution, including model demonstration projects which will provide technical assistance or professional development for institutions to enable faculty, staff, and administrators to provide students with disabilities with a quality postsecondary education. Programs have also been created to support military personnel as they return to school at the same status as when they were called to duty and to support veterans and their families with scholarships and in-state tuition costs.

While there may seem to be numerous new reporting requirements, a few of which are listed above, the Bill also calls for new programs that can provide important opportunities for many groups of students.


Rulemaking is critical to determine actual definitions and full Congressional intent of requirements. Negotiated rulemaking requires notification, selection of committees for rulemaking, comments periods and reviews of comments. This would be a daunting task for a small Bill and a fully-staffed DOE. Currently the DOE is low on staff due to administration transition – which would occur no matter if the party in control changes or not, as well as a Bill with eight titles, 1,150 pages and 62 new programs. If the party leadership changes in the White House, followed by the leadership within the agencies, a complete “staffing up” must occur; Staff will have to be brought up to speed on new administration goals and then the process of rulemaking could begin. Thus it could take up to a full year with a full staff and ample time for notification. A Bill passing at the end of this August with a Presidential election only three months away creates a quagmire of scheduling issues.