The latest happenings in federal education policy and national news
The Access and Diversity Collaborative's Quarterly Update
News and Developments of Note
October 2018
The College Board's Access and Diversity Collaborative (ADC) quarterly newsletter informs members on the happenings in federal education policy and national news, with emphasis on matters of access, enrollment, diversity and inclusion. Each quarter, we will highlight strong practices among members and update members on ADC publications and events, and periodically we will include insights from an ADC sponsor on a topic of interest.
We look forward to seeing many of you at Forum from October 22–24 in Dallas, TX. As a reminder, if you have not already RSVP'd to Forum, please do so here. If you have not yet RSVP'd for the ADC Sponsors' Breakfast, please do so here. Additional details on Forum are below in the ADC in Action section.
Federal Courts
Featured Update: Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, U.S. District Court for the District of Massachusetts. Students for Fair Admissions (SFFA) alleges and Harvard denies that Harvard failed to satisfy the race neutral alternatives and other evidence of need requirements to justify consideration of race in admissions under the Supreme Court's standards for compliance with federal law (Title VI), and that Harvard discriminated against Asian students by stereotyping them. (See the newsletter sent on July 30, 2018 for a fuller summary.) The trial of the case in federal trial court is scheduled to start on October 15, 2018. On September 28th, the trial judge denied both parties' June 2018 motions requesting a decision based on law, without a trial, ruling that a trial is needed to resolve complex disputed facts and differing analyses by opposing data experts. While courts may surprise the parties with a prompt decision, it could take months for the case to be decided at the trial level; the judge (not a jury) is going to decide the facts and apply the law at trial. Once the trial court decides a case, there is generally a 30-day period to file an appeal with the first level federal appeals court, based on claimed error(s) of law; that court may take many months to decide an appeal. There is then a 90-day period (subject to exceptions) during which requests for "certiorari" may be filed, requesting the Supreme Court to take the case, which it may grant or deny.

Additionally, on August 30, 2018 the U.S. Department of Justice (DOJ) filed a "Statement of Interest" in support of SFFA. The DOJ filing argues Harvard "has failed to show that it does not unlawfully discriminate against Asian Americans" and has not satisfied the requirements for consideration of race in admissions under current Supreme Court decisions. The filing says "no American should be denied admission to school because of their race," but does not assert that current Supreme Court decisions should be reversed. A press release is here. The Statement of Interest is here.

Students for Fair Admissions, Inc. v. University of North Carolina-Chapel Hill, U.S. District Court for the North Carolina Middle District. Limited remaining pre-trial fact discovery must be completed by December 19, 2018. Any motions of the parties for "summary judgement," requesting the Court to decide the case under applicable law without a trial based on facts established in discovery, are due January 18, 2019. A trial date has not yet been set. It is anticipated that the trial date will likely be set in the first half of 2019. On August 10, 2018, The News & Observer, of North Carolina, reported that UNC has spent $16.8 million thus far in expenses mainly for lawyers and data experts on the suit. The article is here.
Title IX—Sexual Harassment or Assault. On September 7, 2018, a judge for the U.S. Court of Appeals for the Sixth Circuit, a first level federal appeals court, ruled that a student at a public institution who is accused of sexual harassment or assault under Title IX (or his agent) has the constitutional due process right to an opportunity to directly cross-examine the accuser and adverse witnesses in the presence of a "neutral fact-finder" when the relative credibility of the accused and accuser must be decided. The ruling comes after a suit was filed against the University of Michigan, in John Doe v. University of Michigan. This is consistent with the reported changes (currently under review by the Office of Management and Budget (OMB)), that USED Secretary DeVos intends to make to prior Title IX guidance, which discouraged direct cross-examination. The Court ruling is here. More on the OMB review is here.
Title IX—Transgender Student Rights. On August 7, 2018, a federal trial judge in Indiana granted a preliminary injunction, ruling that a 17-year-old transgender male student must be given access to the boys' bathroom and is likely to prevail in his claim that the school district's barring his access to the boy's bathroom violated prohibitions against sex discrimination under the Equal Protection Clause and Title IX of the U.S. Constitution. The Court's order is here.
Religious Institutions and Public Funds. On August 14, 2018, the Institute for Justice filed two federal suits seeking access for religious institutions to public funds. In the case in Washington State, the Institute claims the state's work-study program violates the Free Exercise, Equal Protection and Establishment Clauses of the U.S. Constitution because students may only work for entities that are not "sectarian." In the case in Maine, the Institute claims a tuition payment program violates the Free Exercise, Establishment, Free Speech, Equal Protection, and Due Process Clauses by not paying for tuition at religiously affiliated high schools when tuition at other schools is paid if the district does not offer a district school option.
Student Loan Servicing. On August 10, 2018, a U.S. District Court judge ordered Navient to turn over documents to the Consumer Financial Protection Bureau (CFPB) related to how the student loan company it is suing for fraud collects and manages the payments of federal student loan borrowers. The Court's order is here.
U.S. Department of Education (USED)
On September 26, 2018, The Wall Street Journal reported that USED and US DOJ are investigating Yale University following complaints alleging it discriminates against Asian-American applicants in admissions, filed by the Asian American Coalition for Education in 2016. The departments did not find sufficient specificity to investigate similar complaints against Brown and Dartmouth and dismissed them. The article is here.
On September 20, 2018, POLITICO reported that only 96 individuals have successfully had their student loans forgiven under the federal public service loan forgiveness program. According to USED data, USED rejected more than 70 percent of the 28,000 applications it received for the borrower's failure to meet program requirements.
On August 16, 2018, the USED Office of Civil Rights (OCR) announced it will be investigating the allegations of sexual abuse by former Ohio State University wrestling team doctor, Richard Strauss. OCR will focus on the University's handling of reports of "sex-based incidents involving Dr. Strauss" and allegations that OSU employees knew about the abuse and chose not to act. A POLITICO article is here.
On August 15, 2018, USED launched its mobile app, allowing students to complete their Free Application for Federal Student Aid (FAFSA) on their cell phones and mobile devices. A Washington Post article is here.
On July 26, 2018, the New York Times reported that USED plans to rescind the Obama-era "gainful employment" rule. The regulation requires for-profit degree programs and vocational/career certificate programs at any post-secondary institution to demonstrate program graduates were employed in jobs that would allow them to pay off their student loans, or lose access to federal funds. Access to federal funds would no longer be barred if programs are unable to prove gainful employment, but data on graduate performance would still be made public through USED's "College Scorecard." The article is here.
U.S. Department of Justice (DOJ)
On September 17, U.S. Attorney General Jeff Sessions spoke during the Department of Justice (DOJ) forum on Free Speech in Higher Education, describing freedom of speech and expression as being "under attack on the college campus;" DOJ is supporting the First Amendment in statements of interest it is filing in court cases. The Attorney General's remarks are here.
Trump Administration
On July 31, 2018, President Trump signed into law H.R. 2353, the "Strengthening Career and Technical Education for the 21st Century Act," to reauthorize Career and Technical Education (CTE) programs. A White House press release is here.
U.S. Congress
On September 26, 2018, the U.S. House of Representatives Committee on Education and the Workforce held a hearing on "Examining First Amendment Rights on Campus." The hearing included testimony from Zachary Wood, author of the book Uncensored; Joseph Cohn, Legislative and Policy Director of Foundation for Individual Rights in Education; Suzanne Nossel, Chief Executive Officer of PEN America; and Ken Paulson, President of the First Amendment Center. A recording of the hearing is here. The majority press release is here. The minority press release is here.
On September 18, 2018, Senate Health, Education, Labor, and Pensions (HELP) Committee Chairman Lamar Alexander (R-TN) spoke at the U.S. Department of Justice (DOJ) Forum on Free Speech in Higher Education, urging no federal action to encourage free speech on college campuses. He encouraged college leaders to make expression of "many different points of view…routine." Chairman Alexander's remarks are here.
On August 1, 2018, the Institute for Higher Education Policy released a side by side analysis of key provisions of the House Republican and Democratic proposals for reauthorization of the Higher Education Act, respectively H.R. 4508, the "Promoting Real Opportunity, Success, and Prosperity through Education Reform (PROSPER) Act," and H.R. 6543, the "Aim Higher Act." Analysis is here.
Released on September 16, 2018, a WGBH News poll on diversity in higher education, conducted with Abt Associates, found that 72 percent of Americans oppose the consideration of race in college admissions, but that 86 percent believe racial and ethnic diversity on campus is "at least a somewhat important goal." More on the poll is here.
On August 2, 2018, the New York Times, in "Colleges and Universities Woo Once-Overlooked Transfer Students," discussed increased institutional interest in transfer students that is likely linked to a six-year trend of decreased undergraduate enrollment. The article is here.
Financial Aid
On September 3, 2018, The Wall Street Journal, in "In Race for Students, Colleges Offer to Match Tuition at Rival Schools," discussed tactics institutions have chosen, including expanding access to in-state tuition for students from neighboring states and private institutions matching the cost of public institutions, to attract students to their campus. The article is here.
Released on August 14, 2018, the Education Commission of the States report, "Redesigning State Financial Aid: Principles to Guide State Aid Policymaking," suggested that state financial aid programs be redesigned to be student-centered; goal driven and data-informed; timely and flexible; and broadly inclusive of all students' educational pathways. The report is here.
Campus Climate and Racial Equity
On September 18, 2018 The Atlantic published "The Coddling of the American Mind ‘Is Speeding Up,'" an interview of Greg Lukianoff, a First Amendment lawyer and the president of the Foundation of Individual Rights in Education (FIRE), discussing the impact of political polarization on campus culture and free speech. The article is here.
On September 16, 2018, The Chronicle of Higher Education article, "On Speech, Don't Silence Students," reflected on ways the Woodward Report (Yale University's 1974 Report of the Committee on Free Expression) is still reflected in campus free speech conversations. The article is here.
On September 10, 2018, The Chronicle of Higher Education article, "What Happened When One University Moved a Confederate Statute to a Museum," discussed the removal of a Jefferson Davis statue at the University of Texas at Austin and its subsequent installation in an exhibit. The article noted the promptness of the university's response to objections to the statue, but that the exhibit focuses only on the history of the statue, rather than the history of Jefferson Davis himself or the racial issues he represents. The article is here. An August 29, 2018 article, "Silent Sam Was Toppled. Yet He Still Looms Over Campus," discussed the background of UNC's Silent Sam statue and the impact and aftermath of its removal on UNC's campus climate. The article is here.
On August 31, 2018, The Atlantic article, "The ‘Whitening' of Asian Americans," discussed implications of the recent Harvard and University of North Carolina lawsuits, particularly as they relate to identity and privilege of White Americans and Asian Americans. The article is here.
On August 1, 2018, an Axios analysis, "The college wage gap is real for Americans of color," indicated college degree attainment, on average, results in higher wages, but gaps based on race persist. White Americans with a bachelor's degree experience a 29 percent increase in wages, compared to only a 15 percent increase for Black Americans and a 12 percent increase for Hispanic Americans. Women with a bachelor's degree, on average, have increased their wages by nine percent since 1978. The analysis is here.
Title IX
On September 26, 2018, the Social Science Research Network published, "Widely Welcomed and Supported by the Public: A Report on the Title IX Comments in the U.S. Department of Education's Executive Order 13777 Comment Call." This study examined responses to the Trump Administration USED's request for public comment on Obama-era Title IX policy (2011 Dear Colleague Letter). The analysis found that of over 16,000 comments received, 92 percent supported enforcement of the existing policy. The study is here.
On September 11, 2018, the New York Times reported that an internal USED analysis of its proposed new Title IX rule on sexual harassment and assault claims investigations- which has yet to be published – projects a reduction in the average number of college and university investigations of such claims from 1.18 per year to 0.72 per year, a 39 percent decrease, with a $19 million annual savings. The proposed rule is currently being reviewed by the Office of Management and Budget (OMB). The article is here.
On August 30, 2018, The Atlantic article, "A Step-by-Step Guide to Trump's New College Sexual-assault Policy," discussed how the reported proposed USED rule changes may play out on college campuses. The article is here.
This fall, two ADC institutions, Rice University and The University of Texas at Austin (UT Austin), have significantly expanded their financial aid programs to better meet the needs of both low- and middle-income students. On September 13, 2018, UT Austin announced that the Texas Advance Commitment, which launched last spring, would be available not only to new students, but also to all eligible current undergraduate students. This program expanded the University's financial aid program to increase support for students from families with incomes of up to $100,000 who have financial need by guaranteeing financial aid support. The program also ensures students from families with incomes of up to $30,000 enough financial aid to, at a minimum, cover full tuition costs. The press release is here.

On September 18, 2018, Rice University announced "The Rice Investment." This new plan is built on the idea that "talent deserves opportunity" and aims to increase the affordability of higher education by significantly expanding its undergraduate financial aid program to support more students from low-income and middle-income households. Through this plan, the University will provide grant aid that covers full tuition, mandatory fees, and room and board for all students with family incomes below $65,000. Students who are eligible for need-based aid and whose families make between $65,000 and $135,000 will receive full tuition scholarships. Finally, for students with family incomes between $130,000 and $200,000, the University will provide scholarships that cover at least half of their tuition. The press release is here.
On August 1, 2018, the University of Texas (UT) published the outcomes of its study, "Dual Credit and Success in College." The study investigated the impact dual credit programs had on graduation rates and student debt. Key findings include that dual credit students are more likely to be retained and graduate from a UT system school and have higher GPAs their first three years. The study also found dual credit did not have an impact on student loan debt, unless a student entered with 60 or more dual credit hours. The study is here.
If you would like your institution/organization to be considered for future Sponsor Spotlights, please send a brief description of your initiative or practice to Emily Webb at [email protected].
Upcoming Events
From October 22–24, 2018, the College Board will host its Annual Forum in Dallas, Texas. Please visit College Board Forum 2018's homepage for further details here. If you have not yet RSVP'd for the Forum, please do so here.
ADC Sponsors' Breakfast, Monday, October 22, 2018, 8:00–9:30 am. If you have not yet RSVP'd for the ADC Sponsors' Breakfast, please do so here.
The Access and Diversity Collaborative will be hosting two sessions during Forum:
Beyond Admissions: Applying Federal Nondiscrimination Laws to Financial Aid
Tuesday, October 23, 2018, 10:45am–12:00pm
Inclusion and Free Expression on Today's College Campuses
Tuesday, October 23, 2018, 1:15–2:30pm
Upcoming Publications
The Holistic Review Guide, combining thought leadership and examples from the field, and a Report on key takeaways and forward looking action arising from the Bakke 40th Anniversary Convening on August 1st, will be published shortly. Forthcoming later will be a Financial Aid Guide, addressing an area of importance for good policy and legal practice in the current campus, federal and societal environment.
EducationCounsel LLC is a recognized leader on issues of education policy, strategy, and law as it works to close achievement gaps and improve education outcomes for all. EducationCounsel addresses an array of higher education issues, including those associated with student access; institutional quality; and student/faculty diversity, inclusion, and free expression. An affiliate of Nelson Mullins Riley and Scarborough LLP, EducationCounsel helps lead the work of the College Board's Access and Diversity Collaborative and is responsible for the development of this newsletter. For more information, visit
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