The Freedom to Learn Amendments 2.0

Editor’s Note: These recommendations, put together by NAS president Peter Wood along with NAS staff members Ashley Thorne, Rachelle Peterson, David Randall, and Spencer Kashmanian, are a preliminary working document. We have updated our original recommendations (version 1 here). We welcome comments and suggestions on further revisions, which can be sent to [email protected].

The Higher Education Act, enacted in 1965 and last reauthorized in 2008, provides the primary framework for the federal government’s involvement in American higher education. It defines “institutions of higher education,” provides the architecture for federal student grants and loans, sets institutional eligibility for federal money, bars discrimination, and provides for a host of regulations on colleges and universities. The Higher Education Act is due for renewal, and it is likely that a new version will be introduced into Congress this year.

NAS presents the following recommended changes to the Higher Education Act in the spirit of opening American colleges and universities to healthy competition, the pursuit of individual excellence, meaningful institutional variety, and freedom from overregulation.  The proposed steps would remove barriers to learning that have gained a foothold in American higher education, including rampant politicization of the curriculum and the extra-curriculum.  We seek to restore to American higher education its foundations in the pursuit of truth and virtuous citizenship.  We seek to limit the misuse of higher education as a platform for propagating political loyalties and ideological commitments.  The freedom to learn is necessarily a freedom from the misuse of higher education to inculcate allegiances to fractious causes and identity groups.  A freedom-to-learn approach to the Higher Education Act requires some measures to undo current practices, destructive regulations, and ill-conceived public policies.  It also requires phasing out or eliminating some mis-incentives that have crept into the Higher Education Act over the last fifty-two years.

The Act includes 11 titles divided into hundreds of sections. We organize our recommendations by section of the law below. We present these as preliminary revisions and welcome comments and suggestions for further improvements to the Higher Education Act.

Title I

Congress must restore First Amendment rights, and genuine intellectual freedom to our campuses. Title I provides an excellent opportunity to do that by requiring colleges to uphold these rights in order to be eligible for access to federal student loans and other forms of federal financial support.

Sec. 1011a. Protection of student speech and association rights
 

• Require colleges to submit an annual report on steps taken to uphold these speech and association commitments, detailing any instances in which such a commitment has been violated by students or faculty and how the institution has taken steps to punish offenders and better protect the rights of speech and association in the future.
• Congress should either create an independent commission, directly responsible to Congress and overseen by the Education Committee, or authorize the Secretary of Education to summon witnesses and demand information, to see how colleges and universities have been fulfilling these responsibilities to protect student speech and association rights. This commission or the Secretary will report to Congress at least once a year, and list non-feasant and mal-feasant colleges and universities. Any non-feasant or mal-feasant college or university may then be denied eligibility for Title IV funds.
• “Protected speech” and “protected association” will be defined to include not only First and Fourteenth Amendment rights but also explicit mention of:
  • The right of invited speakers to speak and to be heard.
  • Rigorous and effective defense of free speech against intimidation, threats of violence, actual violence, and reprisals.
  • The right to study in an environment free of disruption and intimidation
  • The right of student associations (especially religious ones) to determine eligibility for membership and qualification for positions of leadership.  These rights not to be abridged by institutional mandates for race, class, sex, gender, or gender-preference inclusivity.
  • The right of free exercise of religion.
• Nothing in these provisions should infringe upon any religious liberty, freedom, expression, or association of a college and university with a religious affiliation or doctrinal statement. Private religious colleges that qualify for exemptions in 42 U.S.C. § 2000e-2(e)(2) should be exempt from these requirements. 

Penalties for noncompliance should be incremental and perhaps include a phase-in period, as suggested by Stanley Kurtz.

Title I also lays out key definitions that apply to all of HEA.  Some of these definitions need to be revisited and revised.  Five areas that stand out are the treatment of for-profit colleges, foreign gifts, speakers’ fees, peer review, and the treatment of homeschooled students.

Sec. 1001. General definition of institution of higher education

• We want to modify this in the direction of making it easier for new entrants and harder for status quo institutions to create barriers to entry. Add “for-profit” among the descriptors of an institution of higher education.
• Revise the current requirement for accreditation. Using general accreditation as the gateway requirement for institutional eligibility to receive federal grants and loans has had the unintended consequence of making the stakes so high that accreditors hesitate to evaluate the actual quality of educational programs. Their evaluations of educational merit are typically so thin as to serve no meaningful public purpose.  The solution is to divide accreditation into two institutionally separate functions:  a mandatory assessment of financial stability that should serve as the gateway to receiving federal financial support; and optional form of assessment that deals exclusively with the intellectual quality and rigor of educational programs.  To make the latter optional will only elevate its importance.  Colleges and universities that are financially solvent but that have poor educational programs will be publicly visible in a way they are not under the current system.  Those that forego voluntary educational assessment will make themselves conspicuously suspect. 

Sec. 1002. Definition of institution of higher education for purposes of student assistance programs

• Require that the “gainful employment” rule be applied equally to both for-profit and non-profit colleges, as well as vocational schools.

Sec. 1011f Disclosures of foreign gifts

• Lower the disclosure threshold from $250,000 to $50,000. All disclosures must be publicly accessible. At the moment unfriendly foreign powers are taking advantage of this loophole.

New Section:  Disclosure of speaker fees

• In light of the widespread use of speaker fees and honoraria by universities to transfer large sums of money to politicians and activists in favored causes, all colleges and universities that are recipients of federal funding are required to disclose such fees and emoluments in excess of $20,000.  

Sec. 1011g. Application of peer review process

• Amend this section by replacing “peer review” with “expert review.”  “Peer review” has increasingly been compromised by higher education drift into ideological conformity and groupthink.  The Secretary should be advised to seek reviewers who are of genuinely independent minds.

New Section: Homeschooled students

• Homeschooled students who have finished the 12^th grade should be added to Title I as an explicit category of fully qualified high school graduates. HEA is currently inconsistent on this. In many places HEA prohibits invidious distinctions between homeschooled and other high school graduates (see Title II, Part C, Section 261), but in Title IV, Part G, Section 484, homeschooled students are labeled “Students who are not high school graduates.”  Some states—New York and California—have seized on this provision to deny homeschooled high school graduates eligibility for admission to public universities.

Title I might also be the place where Congress should define some basic expectations for what higher education should entail.  HEA is very weak and inconsistent on the basic content of a college education. 

Congress should amend HEA to distinguish remedial education programs from college enrollment.

Colleges and universities may choose to run such programs on the side. Currently, HEA explicitly permits Title IV student loans to be used to pay for remedial courses if the college determines such courses “to be necessary” for the student to pursue a first bachelor’s degree or if the student needs further instruction in basic English.  This approach is only superficially generous to such students.  The vast majority do not go on to complete a college degree. 

The same very basic standards in a few other areas (e.g. basic quantitative knowledge; basic history; basic science) should also be part of the Title I definitions of higher education.  The goal is not to fence students out, but to guide them to the higher level of proficiency needed for a meaningful college education.

Title II

Title II, “Teacher Quality Enhancement,” deals mainly with schools of education.  This is a fraught topic, in that our schools of education have become notorious for elevating pedagogical theory over the cultivation of both classroom skills and subject knowledge, and for having become obsessed with promoting social justice ideologies at the expense of open-minded inquiry.  Before Congress reauthorizes this part of HEA it should pursue a thorough review of the radical decline in the quality of teachers’ colleges. 

Title IV

The federal government’s role in student aid has, over time, proved counter-productive.  It has fed an enduringly high rate of inflation in college tuition; created incentives for colleges and universities to compete with each other on the basis of student amenities more than the quality of academic programs; plunged many students into deep and sometimes insupportable debt; and created perverse opportunities for federal bureaucrats to exert undue influence or control over colleges and universities that have grown dependent on the federally-approved flow of student loan dollars.  Inadvertently Title IV of the Higher Education Act has turned American higher education into a special interest more devoted to protecting its access to public funds than to advancing the education of students or America’s international competiveness. 

But this system is now so embedded in our political system and in the public expectations that abolishing it is out of the question.  To do so would impose severe hardships for students as well as institutions of higher learning.  But there are ways to improve the Title IV student aid system and eventually align it with the public interest.  We propose twelve steps, several reflecting advice we received from Richard Bishirjian and Richard Vedder.

• First, streamline student aid into just two programs: a grant program and a federal loan program.
• Second, give educational vouchers directly to students.
• Third, grants and federal student loans should be given only to those with family incomes below 150% of the poverty level. Aid should come with modest academic expectations, such as maintaining a 2.5 grade point average. Institute a maximum number of years (five) for which students can receive federal assistance.
• Fourth, transfer 50% of the current Title IV allotment to the states over the next ten years—5% a year—and start in two years.
• Fifth, the remaining allotment of Title IV funds will be directed solely to colleges and universities accredited by financial accrediting bodies (as set forth in Sec. 1001) that:
  • Also accredit Internet-only institutions.
  • Have a commitment to expediting the entry of new colleges and universities into the marketplace.
• Sixth, colleges and universities must have some skin in the game.  Colleges and universities that receive Title IV student loans, Pell Grants, and other student funding originating in or guaranteed by the federal government shall be liable for thirty percent of repayment of the principal and interest in the event that a student fails to receive a college degree within eight years of first enrolling in any four-year program for which those funds have been employed, or five years of any two-year program for which those funds have been employed.  
  • Each participating college will be entitled to an exemption for this liability for no more than five percent of the total number of students matriculated into each class and still enrolled after one full semester. 
• Seventh, when graduates or former students who have not graduated default on repayment of student loans, the colleges and universities that have received funds from these loans shall be liable for repayment of a portion of the principal. 
  • That portion will be determined on an institution-by-institution basis according to a sliding scale that reflects the overall default rate of students from that institution. 
• Eighth, make income-share agreements enforceable.
• Ninth, institute a borrowing cap.
• Tenth, in order to qualify for Title IV loans, colleges must meet a number of provisions:
  • File a pledge with the Department of Education to uphold student speech and association rights set forth in Sec. 1011a.
  • Sign a charter of academic rights, said charter to be drafted by a Presidential Commission appointed for that purpose.
  • Reduce the proportion of college administrators to faculty members to a proportion to be determined. 
  • Spend a minimum percentage of income from the endowment to subsidize students’ costs, thereby lowering tuition. Percentage to be determined.
  • Set up judicial procedures for students and faculty with robust due process, the presumption of innocence, the right to counsel, the right to know what one is charged with, the right to face one’s accuser, and the right at all times to speak publicly about any case. Colleges should also refer all reported felonies immediately to the local police.
  • Verify that they are not a “sanctuary campus.” Colleges must provide full information about the legal status (citizen, legal immigrant, or other) of all students, faculty, and other employees. Colleges must also agree to cooperate with the Department of Immigration and Nationalization.
• Eleventh, split accreditation into two independent parts:  required financial accreditation and optional general accreditation. 
• Twelfth, remove from the law all regulatory distinctions between profit and not-for-profit institutions. 

Title IX

1161u Sustainability planning grants authorized.

• Remove the authorization for sustainability planning grants.

Sec. 1681 Sex.

• Define “sex” as biological, not mental or emotional, or dependent on an individual’s self-perception.  
• Specify a Congressional legal office to review all Department of Education “Dear Colleague” letters and assess whether they substantially reinterpret or add to Title IX’s statutory meaning.
• Require colleges and universities to
  • set up judicial procedures for students and faculty with robust due process, the presumption of innocence, the right to counsel, the right to know what one is charged with, the right to face one’s accuser, and the right at all times to speak publicly about any case.
  • refer all reported felonies immediately to the local police.
• Establish federal licensing requirements for Title IX administrators. Requirements will include knowledge of and willingness to comply with the above judicial procedures.

Image: United States Capital by Phil Roeder // CC BY 2.0