Carrying Out the Higher Ed Act

As the Obama administration and Congress consider new legislation that could dramatically reshape the federal student aid programs, the Education Department is putting the finishing touches on carrying out the last set of major changes to federal laws governing higher education. The department on Friday proposed a set of regulations for a broad range of provisions -- on such topics as campus safety, illegal sharing of digital files, and educating students with disabilities -- that Congress enacted as part of last year's renewal of the Higher Education Act.

The regulations proposed Friday resulted from one of five negotiating teams that the Education Department established last winter to negotiate regulations to implement the Higher Education Opportunity Act. Two others related to loan issues, one to grants, and one to accreditation. This one, the fifth, was described by college lobbyists as the "cats and dogs committee," as it dealt with a wide array of issues -- many of them narrow -- of the sort that the Higher Education Act has increasingly come to be filled with. Depending on one's perspective, those issues are seen either as piling regulations on colleges or seeking to hold them increasingly accountable.

The designated negotiating team of college officials and others for this set of issues reached agreement on proposed regulatory language for all but 2 of the 31 issues they debated. But under federal guidelines, that failure meant that the agency in question (in this case the Education Department) had essentially free rein to propose whatever rules it wanted.

Despite that latitude, the regulations proposed by the department Friday are, on the whole, relatively uncontroversial; the most disputed relate to the two issues on which the negotiators failed to agree: the government's chosen approach for letting students use two Pell Grants in a single year, and for requiring colleges to report job placement information.

Year-Round Pell Grants. Much to the delight of college officials, the Higher Education Opportunity Act, for the first time, made it possible for students to receive enough Pell Grant aid to attend college year-round, to "accelerate" their progress toward degree completion. During the course of three negotiating sessions, the Education Department proposed several different iterations of language designed to ensure that students were using the Pell aid to complete their academic work briskly.

The department's final proposal during the negotiations -- that a student finish all of his or her college's required credit hours in a given academic year before receiving a second Pell Grant in that year -- met with strong opposition from several negotiators, who said that the department's approach would make it virtually impossible for those attending less than full time to qualify for year-round grants, and that the department was misreading what Congress meant by "acceleration."

In putting forward their proposed rules Friday, department officials stuck to their position, saying they read Congress's use of "acceleration" to mean that students would be finishing their programs faster than is normal. "We are proposing these requirements to encourage a student to accelerate the completion of his or her program of study within a shorter time period than the regularly scheduled completion time, i.e., the published length of the program," the department said in its guidance accompanying the proposed rules. "Providing up to two Federal Pell Grants to students for attendance in all payment periods in an award year supports this acceleration. We believe that, by encouraging the student to complete the credit or clock hours in the academic year expeditiously, the benefit of most students' second Scheduled Awards would be maximized."

College officials said they were disappointed that the department had rejected their arguments that the additional Pell Grant funds should be made available not to help students finish college faster than is normal, but to help an individual student finish his or her program faster than he or she would have otherwise, which is what they believed Congress intended.

"The proposed regulations reflect neither the intent of Congress nor the letter of the HEOA," David S. Baime, vice president for government relations at the American Association of Community Colleges, said in an e-mail message. "If members of Congress had meant to require students to earn an entire year of academic credit before being eligible to receive a second Pell Grant, they would have said so explicitly.

"More importantly, the proposed policy is not really logical -- it would deny a student a Pell Grant in May when that same student, taking the exact same set of courses in September, would be eligible for the same Pell Grant. Because of this, the department's policy will simply serve to retard rather than accelerate the academic achievement of many community college students."

'Placement Rates' and Consumer Disclosure. As part of the "consumer disclosure" section of the Higher Education Act, Congress added a slew of new reporting requirements, part of the growing push to compel colleges and universities to make as much information as possible to students and families about their policies and practices. While college officials have largely (if grudgingly) accepted the increased personpower burdens they face in making the ever-expanding information available, they balked during last spring's negotiation over what they saw as a clear effort by department officials to push even beyond what lawmakers were seeking, in terms of "placement rates."

The legislation enacted by Congress called on colleges to report annually on the "placement of and types of employment obtained by graduates of the institutions' degree or certificate programs." But in the negotiations over possible regulations, the Education Department sought to go further, proposing that colleges be required to report "placement rates," if they calculate one. College negotiators objected to that approach, saying that Congress had not considered requiring the publishing of "rates" and that the department was overreaching.

Department officials essentially admitted as much in their proposed rule making notice on Friday. Since the statute is silent about requiring an institution to calculate an actual placement rate, or to disseminate that rate if it calculates one, a number of non-Federal negotiators argued that the regulations should remain silent in that regard," the rule making notice said. "However, the Department believes that disclosing placement rate information would be beneficial to students and prospective students. If the institution makes available placement rates that it has, students and especially prospective students will be able to make more informed decisions about enrollment in various programs at the institution.

"Therefore, when a placement rate is voluntarily calculated by the institution, proposed Sec. 668.41(d) would require the institution to disclose that rate along with other placement information."

The regulations proposed by the department Friday would also:

• Lay out the guidelines under which a college or university must certify that it has plans to effectively combat unauthorized distribution of copyrighted material and will offer alternatives to illegal downloading or peer-to-peer distribution of intellectual property.
• Significantly expand eligibility for federal financial aid programs for students with intellectual disabilities.
• Impose a broad set of reporting requirements on colleges related to campus fire safety.
• Generally give for-profit colleges more flexibility in complying with a law that requires at least 10 percent of their revenues to come from non-federal sources.

Comments on the proposed regulations may be submitted until September 21; final rules are due by November 1.