Matthew Sloane is an Associate in the Boston office
- President Donald Trump has issued a new Executive Order (EO) that addresses generally speech restrictions that do not "promote free inquiry" on college campuses and, more specifically, the growing costs of higher education.
- The EO – which has the stated goal of making postsecondary education "more affordable, more transparent, and more accountable" – requires the collection and publication of more data to prospective students before they choose a school and decide on financing the cost of attendance.
- Institutions of higher learning do not, as of now, have any new obligations to collect or store the applicable information, nor are there new legal principles to apply to campus speech issues. However, institutions should follow carefully the "appropriate steps" taken by federal agencies to pursue the goals stated by the EO.
President Donald Trump issued a new Executive Order (EO) on March 21, 2019, for the purpose of enhancing "the quality of postsecondary education by making it more affordable, more transparent, and more accountable." The EO addresses generally speech restrictions that do not "promote free inquiry" on college campuses and, more specifically, the growing costs of higher education by requiring the collection and publication of more data to prospective students before they choose a school and decide on financing the cost of attendance.
The EO states that it is the goal of the federal government to "foster environments that promote open, intellectually engaging, and diverse debate ... ." Public institutions are expected to comply with the First Amendment; private institutions are expected to comply with "stated institutional policies regarding free speech." The EO disclaims the intention to change existing laws governing speech on campus. Rather, institutions are encouraged to "promote free inquiry" through "compliance with applicable Federal laws."
The EO does, however, authorize the heads of various federal agencies – including the departments of Education, Defense, and Health and Human Services – to take "appropriate steps" to advance the stated purpose of the EO. What these "appropriate steps" will be remains to be seen. The EO does not define them or provide much explication, other than to caution that the steps should be undertaken "in a manner consistent with applicable law." One example that may prove telling is the recent update that the U.S. Department of Education's Office for Civil Rights made to its Case Processing Manual, which included a specific provision about interpreting civil rights laws consistent with the First Amendment. (See Holland & Knight's alert, " Office for Civil Rights Changes its Complaint Processing Manual Again," Nov. 26, 2018.)
Education Costs and Student Loan Debt
The EO cites that, during the past 30 years, college tuition and fees have risen at more than twice the rate of the Consumer Price Index. To address growing education costs, the Trump Administration seeks to better educate student loan borrowers regarding:
- financial risks of the federal student loan program
- potential returns of their investment based on degree type and institution
- repayment obligations and options to avoid loan default
To advance these policies, the EO requires annual updates to, and expansion of, the College Scorecard or any successor program. The data expansion requires program-level data for each certificate, degree, graduate and professional program. The data will be collected only from former students who received federal student aid and will include:
- estimated median earnings
- median Stafford loan debt
- median Graduate PLUS loan debt (if applicable)
- median Parent PLUS loan debt
- student loan default rate and repayment rate
The EO does not detail how estimated median earnings data will be compiled by the Department of Education or, potentially, institutions.
Additionally, the College Scorecard will provide more institution-level data that will collect, in the aggregate, the following data for all certificate, degree, graduate and professional programs for former students who received federal student aid:
- student loan default rate and repayment rate
- Graduate PLUS default rate and repayment rate
- Parent PLUS default rate and repayment rate
Reporting requirement deadlines apply to the Department of Education and other government agencies. There is, as yet, no affirmative duty on institutions to report this data.
Conclusion and Considerations
Institutions of higher learning do not, as of now, have any new obligations to collect or store the applicable information, nor are there new legal principles to apply to campus speech issues. However, institutions should follow carefully whether and how any federal agencies undertake "appropriate steps" to pursue the goals stated by the EO. Requirements may change prior to implementation if legal challenges are raised.
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