Note: this transcript was provided by an external transcription service.
Mushtaq Gunja: Hello and welcome to dotEDU, the public policy podcast from the American Council on Education. My name is Mushtaq Gunja. I'm joined, as always, by my co-hosts, Jon Fansmith and Sarah Spreitzer. Jon and Sarah, how are you?
Sarah Spreitzer: Great.
Jon Fansmith: I'm just jealous of our other guest, who apparently has ACE apparel. Nobody's offered me ACE apparel.
Mushtaq Gunja: Well, we are also joined by very special guest, Hiro Okahana, ACE's, Managing Researcher and chief of Planning and Impact, and he's always decked out in the best gear. Hiro, thank you for joining and thank you for helping me manage Jon and Sarah today because it's not an easy task, just me doing it on my own.
Hiro Okahana: I don't think that was in the ask.
Mushtaq Gunja: Yeah, I didn't put that in the planning document, but Hiro, you're definitely doing that. Everybody, we are here today to talk about one big topic, the future of college admissions. And then just a signpost, we're going to tackle three additional topics a little bit later in the conversation. We want to talk a little bit about international students, give everybody an update on what's happening, especially vis-a-vis Harvard. There was a decision that came out last week, and then maybe start a conversation about appropriations and a possible shutdown that, I say start one because I think we're probably going to spend a lot of time in a couple of weeks talking about all of that too as we come to the end of a CR.
And you may have noticed that there is a poll question up, if you're watching this on YouTube or on this live session. And we wanted to ask the audience what topics you thought we might want to cover in some future episodes. So if you wouldn't mind taking 20 seconds, just look at that question and fill it out and submit, if you don't mind. Actually, I'm going to do the same. Legal cases to watch in higher ed. I'm interested in that topic. Submit.
Jon Fansmith: [inaudible 00:02:03].
Sarah Spreitzer: You didn't pick international? I can't believe that.
Mushtaq Gunja: I do want to [inaudible 00:02:07]-
Jon Fansmith: Are we all supposed to just vote for the things that we care about? Is that what we're doing right here?
Mushtaq Gunja: We did not put Section 117 on the [inaudible 00:02:14].
Sarah Spreitzer: Don't just work on Section 117. I have a whole plethora of topics I can talk about.
Mushtaq Gunja: We are going to ask you about all of those topics, Sarah, but thank you for filling that out and okay, why don't we dive into the main topic, this new data request, future of college admissions. Jon, there was an executive order that the president issued on August 7th. I think it was titled Ensuring Transparency in Higher Education Admissions. What was that EO?
Jon Fansmith: Yeah, so the EO, in many ways, should be thought about as a follow-up to earlier executive orders this administration has offered that people probably remember. Day one of the administration, there was an executive order around DEI and barring federal agencies and their contractors from utilizing DEI. And that was followed not long after by some additional guidance from the Department of Education about what that would look like on college campuses. And basically what those earlier executive orders and the subsequent guidance was saying was the Students for Fair Admissions v. Harvard and UNC Chapel Hill cases, which were about admissions, this administration has taken as, interpreted them as meaning essentially a very expansive view, that any consideration of efforts to promote diversity are inherently discriminatory. And I think when those came out, we had a very obviously critical of what was being asserted. Still to this day, and I think pretty widely, most people don't believe is supported by the law, but at least in Students for Fair Admissions, the heart of the case was the consideration of race in admissions.
And so somewhat of a surprise that it took until August for this administration to focus more directly on that aspect of the process. And really, because the law has been clear, the Supreme Court ruled, we know that you cannot consider race as part of a holistic admissions decision anymore. What they're doing is they're going further forward. We can talk about why they're doing this, but basically what they have done is there's a new executive order that says we need to have greater transparency into the, essentially not the consideration of race, but what are the outcomes by race for different students in the applications process to colleges, universities, the admissions process, enrollment and particularly at selective institutions. That executive order was followed up by a letter from the Secretary of Education, Linda McMahon, saying we're going to implement this.
And the way they chose to implement it was a week later, a notice that they would be amending the IPEDS survey, and I think a lot of our viewers are familiar with the IPEDS survey, but I know here we'll talk a little bit more about that too. Huge, it's the data set survey that institutions fill out, report to the federal government annually across huge range of categories of information on campuses. What their request, the department's new request was that that survey, for this coming academic year, would be amended to include an enormous amount of data we are not currently reporting to the federal government around applications, admissions and enrollment by race and ethnicity disaggregated across a range of categories, but especially things that would be seen as indicators of academic performance. So GPAs, test scores, class ranks, things like that, with the idea that essentially they could determine whether race is perhaps being improperly considered in the admissions process.
What's also really unique about this, and I know here we'll talk a little bit more about the current and what's different here, but they also ask for the previous five years of data in this regard, which is, again, it's highly unusual for an annual reporting survey. It's also particularly difficult in this circumstance because SFFA was a couple of years ago. Schools had not tracked and reported this information to the Department of Education previously. The idea that retroactively, that information will be easily available, you can understand all the problems that would cause, but that's where we stand. There is a request for comment on this notice that is due, essentially allowing the public to weigh in on what they think. That's due back to the Department of Education on October 17th. Is that right, Hiro? The 17th, the 18th. One of those two days. We will figure it out by the end of-
Sarah Spreitzer: It's an October problem.
Jon Fansmith: That's an October problem, right. And ACE will be filing comments on behalf of the higher ed community, but that's the situation we're in right now, Mushtaq.
Mushtaq Gunja: Okay. So Jon, I want to dig back into the comments, but just one question before we bring Hiro in, and I'll preview Hiro's vast expertise and all things IPEDS in just a second. But Jon, there's a question in the Q&A and we certainly received a lot of questions in advance. Thank you, by the way, audience for sending all those questions in. They're extremely helpful in us putting together the plan for what we're going to talk about. Jon, does this EO and the letter, the directive, does it apply to all institutions or only selective institutions? Who does this apply to?
Jon Fansmith: It's a little bit tricky. It applies to selective institutions. The proposed rule doesn't necessarily define what a selective institution is, and then they also specifically ask for public feedback on whether the data reporting should be expanded beyond selective institutions to open enrollment institutions, because they are concerned that perhaps institutions that are not considered selective might be considering race improperly in terms of awarding scholarships or other forms of aid to students. So they haven't specifically said they want that data from, say, a community college or other types of open access institutions, but they do ask the public to weigh in on whether they should be requiring that. So the possibility still exists. Non-selective schools may be asked to report the data. That's not what they're focused on, though.
Mushtaq Gunja: We don't quite know yet. Hopefully we will get more clarity. We'll have to have more clarity.
Jon Fansmith: Well, I wouldn't assume anything here, Mushtaq. We should get more clarity.
Sarah Spreitzer: How about our comments will ask for clarity on that topic.
Jon Fansmith: That's a good way to put it, yeah.
Mushtaq Gunja: Hiro, so for those of you don't know Hiro Okahana, our head of research here at the American Council on Education, an IPEDS expert among other things. He served on the technical review panel recently at IPEDS? I can't remember exactly when, Hiro, you served, but we asked you on because we have a whole set of questions that came in from the audience about the fees, about how this is supposed to work, what IPEDS typically collects, how they collect it and whether this is possible. So let me break that down into an actually askable question, Hiro. What is the sort of data that our institutions have been reporting to IPEDS vis-a-vis race and vis-a-vis admissions over the course of the last few years?
Hiro Okahana: Thanks, Mushtaq. IPEDS have been collecting data by race and ethnicity and also by gender for some parts of data points. Student enrollment is something that institutions are already required to collect the information and to report into IPEDS, disaggregated by race and ethnicity and gender. And the ironic part of this timing is that this year or this year is a data collection cycle for IPEDS. The Department of Education was and is already starting to collect the data on the admissions by race and ethnicity. So they were going to collect the applicant data by race and ethnicity, as well as [inaudible 00:10:36] students, then into the enrolled students' data around it. Now the process of that data points being including have been years in the making.
There were the white paper also to explore the feasibility and what data points should go in. And then there were technical review panel meetings, where data collection experts, the folks who were on the ground at the institutions and being part of the institutional research office in others, and in some cases the researchers or the policymakers who might use data points, they were part of this technical review panel conversation and see the feasibility of collection and also utility of data points. Then the community and institutions were given year in advance notice to look through what this new data collection on application data by race and ethnicity looks like. And we had opportunities to chime in and we got to this implementation phase around it. So there have been some data points collected and that's been updated to include additional data points. But this request is a little bit different, as Jon pointed out. And I think that's the part that we want to talk a little bit more about.
Mushtaq Gunja: Hiro, let me go a little bit big picture first. Will this collection be ready for the winter-spring collection, which opens on December 3rd? Or will it be for next year's IPEDS collection? I mean it feels like it's too late for this fall. And as you say, we typically give institutions much more time to be able to collect data, to be able to organize it. I mean, what's the deal there, Hiro?
Hiro Okahana: I think that's a we don't know. And Jon, please chime in, but what the White House outlined had very aggressive timeline. And looking at their timeline and looking at already established IPEDS data collection cycle, in order to meet that timeline, they need to be part of the winter data collection cycle, around it. Now, is it feasible? It seemed highly unlikely. Unfeasible and impractical goals, and I might be jumping [inaudible 00:13:01], but one of the parts that the request to collect additional data strikes me and others different from the typical cases that what's out there in federal registry [inaudible 00:13:16] or request it lacks specificity. It is a concept to note about what sort of data points they're looking to collect. But typically, before the Department of Education asks, will put together new data collection, we would see actual data collection instruments.
We would see further operationalized version of these texts and relatively short the request for comments paper, to say these are the precise data points, these are the precise breakdown and these are the categories that we are going to use and we want you to fill these out. Please comment. And we haven't seen those. So that makes it difficult to say that can these data potentially be collected or can these concepts be further operationalized? I didn't say impossible, but given the timeline that we know and given that way we work, it just seem highly unfeasible, impractical to see something for this winter timeline let alone this academic year in general. But yeah, [inaudible 00:14:34].
Sarah Spreitzer: Yeah, and Hiro, I mean NCES, the National Center for Education Statistics, that was one of the places that was really hit with the reduction in force, the RIFs. So is that having some impact or do you think it will be harder if they make IPEDS even more complicated for fewer staff to do it?
Hiro Okahana: I would imagine so. Without having, this is a huge undertaking for both institutions and also the federal government too. One, institutions will need to figure out their way to update their data collection system to capture the information they need to report. So that's the process, then put a report into it. Then the federal government, NCS, at least in the past, spend considerable time, resources to do quality control data. And this data, let's just say it's implemented as is or whatever the version that might be. Because of the reason Jon mentioned, they are asking information that goes back five years and not all institutions might have those information collected to begin with.
So we are likely to see a lot of incomplete data forms. And then we also need to, the way, at least, the federal registry notice is outlining it's going to be very granularly disaggregated data points, which means that we need to ensure the privacy protections. IPEDS is not an individual student level data. It's institutional level aggregated data and if the cell size is too small, that if we can identify, based on a few combination of race, ethnicity, program type and the GPA, if we can pinpoint to somebody or if we think that we can pinpoint to somebody, they need to suppress those data points. So those quality control do take time, efforts and with shorter staff, that is a concern about quality of data and usability of data that comes out from it.
Mushtaq Gunja: One of the reasons that we don't rush these data collections is so that we try to ensure that the data that's coming in is going to be of quality, that there won't be mistakes in it, and that we also know what we're going to be able to do with it. I'm just thinking about how complicated this would be, not just because the privacy suppression issues. So those are really real. We certainly dealt with it on the Carnegie classification side, when we were putting together this big database. There are only so many Native American or Pacific Islanders in Delaware. And so we had to suppress a whole lot of data. We just weren't able to consider it. But I mean the way that we have so many high schools in this country where our students are graduating.
My son goes to a school where he doesn't have a, he's not on a 4.0 GPA scale. He's on a number scale. So he has, whatever, let's make up a number. He has a 99.3% GPA. I don't know how that maps onto the 0 to 4.0 plus all these honors courses, plus some people are taking the SAT, some people are taking the ACT, some people aren't taking standardized tests at all. The grain size of this stuff is going to get really small, Jon. So I mean theoretically, we know that. So what's behind this? Why is the administration doing this? What are they going to do with this data? I mean, I know we don't know yet, but what's your prediction here?
Jon Fansmith: We can say we don't know, but I think we pretty clearly know, right? I mean this is following an executive order from the president. It's building upon previous statements and guidance and executive orders from this administration that has been very explicit in their public statements that they believe any consideration of race, broadly, and efforts to be more inclusive on college campuses are inherently discriminatory. And they've made that point across a range of activities on a college campus and have launched investigations off that premise of institutions.
Look at Secretary McMahon's remarks around this. They believe that especially selective institutions are ignoring the decision in SFFA and are keeping their thumb on the scale for students of color in the admissions process. And will they find that in this data? I think Hiro's made it pretty clear that, even in the ideal circumstance where they followed proper procedure and these were the appropriate questions, the privacy protections were clear and identified and you were getting at valid and reliable and comparable data, you still wouldn't find that in most cases because the data won't, you'll get a lot of noise. You'll get probably a lot of misleading information.
But again, I'm not sure that this administration particularly cares about getting an accurate survey sample out. What they're looking for are flags they can use to highlight what they believe. They're looking, it's a fishing expedition to justify a belief they hold to be true in the absence of evidence that it's actually true. And so now they're trying to build the case by casting the net as wide as possible and seeing what examples can come up that might look to indicate some form of discrimination that, frankly, really I don't think is there.
Sarah Spreitzer: So can I play devil's advocate to that answer, Jon, and ask, wasn't the Biden administration trying to find some data around race and ethnicity before they left office?
Jon Fansmith: There's a certain irony in this, right? I mean, if you told the Trump administration they're expanding a Biden administration policy, most of the other Biden administration policies, they eliminated day one of taking office. The Biden administration did, back in beginning of last year, spring of last year, finalized. And in their defense, they followed the appropriate process that Hiro outlined. They implemented it with time for institutions to make changes to systems. It was certainly, if you're going to do these things, the right way to do it. That said, we were really concerned about. The Biden administration asked for expanded reporting on race and ethnicity, broadly, of applicants admitted and enrolled students. And coming at it from a very different perspective, their belief was, in fact, that there might be discrimination in the college admissions process, but that that discrimination was actually suppressing the ability of students of color to attend, especially at selective institutions.
Again, we had a lot of concerns about that, in part for the exact same reasons. It will lead to, even if done appropriately, it will lead to year-to-year ideas that are misleading about what's actually going on on a college campus, trying to impact the complexity of what are fundamentally individual-level decisions by looking at them boldly, 30,000 feet up in the aggregate is a really bad way to do this. It's also, I just want to take this point to say we have well-established, effective processes for going after discrimination, whether that's in admissions or student services or academic opportunities in higher education. This doesn't support those efforts. This is, I keep using the term, but a fishing expedition that's trying to evidence to support an allegation. And it is unfortunate. We, at AC, had opposed the Biden administration's policies just for those reasons. It leads to these kind of weaponization of the data for partisan purposes. But yeah, there we go. I mean the Trump administration has picked that up and turbocharged it in a way that I think we're all very uncomfortable with.
Sarah Spreitzer: So politicizing IPEDS ... being used as a tool for either side.
Mushtaq Gunja: I worry a little bit about the boiling down of admissions to SAT and GPA. It's a redefinition, I think, of what is merit, to just a couple of easily numerical factors, even notwithstanding the complications of trying to compare one high school's GPA to another high school's. But what about our oboe players and what about our football players and what about our debaters and our acapella singers and all the other things that make our campuses rich? I mean Jon, Sarah especially, and then, Hiro, I've got a question for you too, but Jon and Sarah, I mean, do we think those arguments are going to fall on deaf ears? It seems obvious to me that college admissions is more than just a pure numbers game on GPA and SAT.
Jon Fansmith: It's one of the things that bothers me most about this. It's a complete mischaracterization of what admissions is and how institutions approach it and this idea of merit as some objective, easily identifiable, easily accessible and quantifiable quality, what that means to an individual institution and what their mission is and who they seek to serve and the communities they're engaged with. And this idea that, well, if your GPA is marginally higher than somebody else's, you deserve a slot and they don't, it goes really against the entire strength and history of a diverse higher education system that looks at various pathways for students to find the best opportunities for them.
And another point that was made that I think is worth highlighting, if you are just representing, based on demographics in this country, the percentage of students of color in your student population should be going up. This would look at this and say, "If you're a selective institution, the percentage of students of color enrolled in your campus is going up, you are doing something wrong." No, in many ways, what you would be doing is reflecting demographic trends. So it's completely skewing things that we know to be true and that drive this process in ways that are contrary to basic logic.
Sarah Spreitzer: Yeah, and I think that it is part of one of the many things that's being politicized by this government. Any place like the federal government is touching on higher education, where previously it was for the academic institutions to decide it for the institutional mission, which Jon's right, is a huge win for the United States, that we have so much diversity of institutional mission in the United States that this is, whether it's accreditation, whether it's admissions, whether it's a curriculum. Again, this is looking at the federalization of higher education.
Mushtaq Gunja: These are all points I assume that we will make in the ACE comment letter. And I'd like to hear a little bit about what, Jon and Sarah, our plan is from the government relations side and commenting here. Hiro, in the normal course, how would the folks over at IES get feedback, NCES get feedback on changes to IPEDS and what is the right way to be able to give comments on this new proposal?
Hiro Okahana: So the typical way of going about some of these large change happens in NCES, the IPEDS team might commission a paper or two to explore the topic like, "Hey, we want to add these data points. What would it look like? What the feasibility is, what should be the important data points that we should include?" And those papers then inform some decisions by the department and the NCES and the IPEDS team. And then when they have some ideas of what the data collection might look like, then they'll convene us for technical review panel.
As I mentioned, there's a mix of data collectors, like IR professionals and some cases there's some researchers. So if what we are concerned about is admissions practice, for example, we want to invite researchers and policy researchers, policymakers who work with these data and who do studies that inform decisions around institutional practice or public policy around it and make sure that the data IPEDS is going to collect are something meaningful and add value to the decision-making process around. And to Jon's point and the points being made, yeah, the test scores and the GPA, we now know that it only is a part of what describes the academic potential of students and that we don't want to over-index it, but the proposal like this is over indexing those two data points.
And we would have discussion around is this going to add a value? Standard conversation around it. And once the department come up with a data collection instrument, typically, I believe that goes through at least the two rounds of comment process associated by OMB. And that's where institutions get to comment on feasibility burden on institutions. That's one part the federal government, at least in the past, cared a lot about and what the reporting burden looks like, and that's what is going to be reported around.
I know in this process for the current one, I don't know, and I guess we don't know how this process is going to unfold, but I know that our colleagues at the Association for Institutional Research have surveyed the IR professionals and asked them to have educated guess around what this reporting burden looks like questions. And they're going to have some informed comments to the department and say that this is what it's going to take. And I think all of us are in for the data transparency, but there's a reason that we have these process to really help the department operationalize the questions they might have so that we can gather the usable information that add value to the public and the community.
Jon Fansmith: I'll just say Hiro's told me times about the technical review panels and sometimes hour-long fights over the placement of a specific word or whatnot. And it's funny, in some ways, to talk about, but it matters because how you phrase these things, how you frame them, what the definitions mean are critically important in making this useful, at a minimum, but certainly something schools can really comply with. And we're not getting that in this process. And so set aside even the ill intention behind it, it's a flawed and damaged process where it's going to have a flawed and damaged outcome.
Mushtaq Gunja: But Jon, Sarah, what's the next step? How do our listeners, how do our institutions, how can they be helpful? Sounds like we're preparing a comment letter. Is that something that institutions, what's next?
Sarah Spreitzer: Well, I think Jon's drafting the comments, but I was just going to say, people need to realize we have to go through this process of [inaudible 00:30:10] comments. Then they respond to the comments, then they will have a final rule or updates to the IPEDS system. So this is not something that we're talking about will happen in the next month. It likely won't be until the end of the year.
Jon Fansmith: In terms of our steps, we will be doing a comment letter. It won't be open to individual institutions. We very, very rarely open individual letters to institutions, but it is a public comment period. I would say given the participation in this session we're doing right now, the concerns we've heard, not just from the institutional research community, not just from campus leadership, but people across campuses about both what the process is and why it's being done.
We're realistic. We know what the impetus behind these changes are. We know what the receptivity to efforts to stop or peel this back will be. It's still worth putting on the public record the concerns they have, identifying those. It matters. May not feel that way at times, but this is part of the process. If you are going to take an active voice, this is one way to do it and highlight the problems with it. We're going to focus a lot on our comments, on all of the procedural and process and technical problems with what they're proposing. We're going to address some of the rhetorical and philosophical concerns we have as well, but even on its own, like I said before, strip all that out, this is the wrong way to govern. This is the wrong way to do this. Even if the intent was good, this is not how you do these things and that's worth bringing forward.
Sorry, one other thing, because you've mentioned a little bit, and I have seen it in the chats, people are asking about lawsuits. You can't really sue at this stage because, as Sarah pointed out, there is no final rule that's been promulgated. There has been no impact on institutions yet. Correct me if I'm wrong, Mushtaq, but you need some actual harm to bring a lawsuit in the first place. Would something materialize around that to prevent this collection? I legitimately do not know, but certainly given how they've entered into this process and what the implications will be, I wouldn't be shocked to see some effort to say, "Not only is this not something we can reasonably comply with, but the timeframe's wrong. It didn't involve the Administrative Procedures Act. It was just done in the wrong way and should, for that reason, be held up."
Mushtaq Gunja: I think that's probably right. I think we probably need to see the final rule. I hesitate to call it a rule, but the final information request before we can do anything from a lawsuit perspective, I think, but I'm a little hesitant to say that just because it's so clear that the normal rules under the Administrative Procedure Act have not been followed as of yet and do not appear that they're going to be followed. So there might be some ability for us to move, but in the meantime, in the short-term, it sounds like AC will be filing a comments letter and our institution should do the same, Jon?
Jon Fansmith: Absolutely. Our institution should do the same. And I think it is really important to get on the record what this means. To take this administration at their word, they are very concerned about innovation. They're concerned about the burden on institutions, they're concerned about the cost and quality of higher education. Doing something like this that is a massive unfunded mandate, incredibly burdensome, incredibly expensive, in a rushed and hectic timeframe is going to have negative implications, not just for schools. This is not just about school administration. That will have an impact on students.
It will create significant problems in the perception of institutions and how they're approaching admissions. It has real consequences, and I get the cynicism about this administration, the receptivity to those comments, it doesn't really matter. Take the opportunity to publicly speak your concerns, build to the evidence against what the problem is with this approach. I can assure you it does actually matter, and we're talking about something not just for the next month, but in the long-term, if there's legal action, strong public opposition is the sort of thing that gets weighed into that as well. It is important to be heard.
Mushtaq Gunja: Our institutions might not be collecting some of this race and ethnicity data. I know that on many applications themselves, we're not asking for them. We'll have to see how data requests play out, but it'll all be in the comments letter, the difficulties that our institutions are going to be able to have complying with this. Hiro, thank you so much for coming. I'm going to move us to a couple of other topics, but Hiro the background on how this is supposed to work and then some of the challenges that I guess we'll have in releasing this data, I think, are really, really helpful and I'm so glad that you were able to join.
Can I turn us to some international student issues? So back to school, Sarah, and I mean, we've been talking now for months about the difficulties that some of our international students might have, being able to come on campus. We've had a whole set of visa policy changes, we've had delays, we've got some duration of status stuff that's happening. Sarah, what are you seeing on campus?
Sarah Spreitzer: Yeah, so we're not going to get really hard data, I think, until the beginning of November when we see the open doors reports. But from all indications, it does seem that our international enrollment has dropped across the board at our US institutions. Now, for some institutions, especially name-brand institutions on the East or West Coast, they may not have seen a drop. But I do worry very much about smaller institutions or schools that are, say, in the middle of the country, that may have a harder time attracting international students. And you're right, Mushtaq, we saw in the height of the summer when we knew that our international students were going to be applying for visas, the Department of State paused student visa processing for three weeks so that they could put in, they could implement a new policy around social media vetting.
We don't know whether that led to more denials. We'll need to get that info from the State Department. I'm a bit worried because we didn't hear a lot about a slowdown or students not getting their visas processed in time. And to me, I'm worried that that means that those students didn't even apply for visas. That they had just decided not to come to the United States. But we now have a proposed rule from the Trump administration on something called duration of status, and they are proposing to put a time limit on student visas on both F-1 and J-1 Visas. F-1s are used usually for undergraduate, J-1s are usually for scholars, researchers. You also may be familiar with them like from au pairs or camp counselors. That's a J-1 visa. Trump administration had proposed a duration of status in their first term. It would've put a two-year or four-year limit on student visas. This time, they're only proposing a four-year limit.
Currently, a student visa is valid as long as an international student is enrolled and making satisfactory academic progress. This says that you have to finish within four years whatever degree you're working on, or a shorter timeframe if you're doing an English learner class. Otherwise, you'll have to apply for something called an extension of status or an EOS. This extension of status process does not currently exist. And so in this proposed rule, USCIS, which would be the agency within the Department of Homeland Security that would be processing an EOS, it would actually establish this new process. An international student would have to get a new I-20 from their institution of higher education, demonstrating a new end date. The examples that are provided in the proposed rule are all about a medical emergency or perhaps a natural that would close an institution down for a time. It does not share any academic reasons.
The proposed rule would also limit the ability of a student to change their major or to transfer and limits the ability of a graduate student to change their major or for any of the international students to pursue degrees below their current level of studies. So somebody getting a master's would not be able to go back and, say, get a BS or somebody pursuing a PhD would not be able to get another master's. So it's a lot. It's very complicated. The rule is about 140 pages. There's only a 30-day comment period. ACE will be submitting comments. I know that there are many organizations, and ACE too is encouraging individual institutions to submit comments. Last time, I believe that there were tens of thousands of comments that were submitted. They obviously were withdrawn by the Biden administration, but we're hoping that institutions will note why this is likely unworkable for those students coming to the United States who may take longer than four years to get their degree.
Mushtaq Gunja: What are we seeing in terms of institutions trying to support their international students during these uncertain times? I mean visas and status and coming in, how long these programs are taking, all of the threats of just deportation-
Sarah Spreitzer: I mean, I think our institutions are working with individual students and trying to provide support where possible. So if you were accepted at an institution and for some reason your visa was delayed, perhaps working with the student to start their studies somewhere else with the understanding that they could transfer into the US institution once the visa is granted. But for all of this, look, our institutions can figure out a way to graduate students within four years. But what you're doing is you're limiting the attractiveness of a US degree or the experience of studying into the United States. Because you may not be able to do a study abroad program. You may not be able to do a co-op program.
And for an international student considering the United States, I mean, that's a huge financial decision because they have to demonstrate that they can pay for the full education. They're not going to work while they're here, that they intend to return to their home country. And so if it was me trying to make that huge financial and time-wise decision, I might start looking at Canada or the UK. I think our institutions are trying to demonstrate to our prospective students why it's still worth it to come to the United States, why we are still welcoming international students, even though there may be these unwelcoming messages coming or confusing messages coming from the administration.
Mushtaq Gunja: There are a couple of questions about the interaction between this new proposed rule and CPT OPT. Actually first define CPT and OPT for [inaudible 00:41:58]-
Sarah Spreitzer: Yeah. So OPT is optional practical training. A student is allowed to apply for OPT or work authorization after they complete their academic program. Currently, it's for a year, or it can be for up to three years if you're in a STEM field. USCIS has not had the best track record in processing work authorizations for our international students. When we were coming out of COVID and they were processing the work authorizations that you have to have, there was a 90-day period when a student could apply and then start their position. USCIS was taking 120 days. One of the things I should have mentioned was the proposed rule would also change when an international student has to leave the US, at the end of their academic program. Currently, it's 60 days. This would shorten it to 30 days.
So we had international students coming out of COVID that were applying for their OPT, their work authorization at the 90-day mark before their position was starting, but then they were having to count on those 60 days because it was taking that much longer for USCIS to process their paperwork. So this is going to be a much tighter timeline. Again, this doesn't touch OPT, but I worry about those students that are going to be applying for an extension to do OPT, may not get it in time, and then the fees and the paperwork that's going to go into this process when previously, you apply for a 529, you get a work authorization and you're able to stay, well still on your student visa.
Mushtaq Gunja: Sure. Sarah, when are comments due?
Sarah Spreitzer: September 29th, so plenty of time. I've got two more weeks to draft them.
Mushtaq Gunja: Well, and our institutions have a couple more weeks to be able to put their comments in as well.
Sarah Spreitzer: Yes. And I'm sure our producers included a link to the Federal Register notice. I would also put a plug-in for our colleagues at NAFSA, the Association of International Educators. They have a really great summary that they're continually updating of the proposed rule, and I would encourage you to go take a look at that if you have any questions.
Mushtaq Gunja: Thanks, Sarah. Jon can I ask you about the updates on the Harvard lawsuit? So the district court ruled last week in favor of Harvard. What happened and where are we?
Jon Fansmith: Yeah, so this is the initial legal stage of Harvard's lawsuit against the federal government, essentially saying that the government illegally is freezing the funds to Harvard, currently about $2 billion, over the length of the time the administration has talked about freezing funds, up to around $9 billion. The court was unequivocally on Harvard's side. They were very clear that what the administration was doing was not tied in any way to civil rights enforcement or issues of discrimination.
It's really interesting that it's worth taking a look. It's not a long opinion, but it's worth looking at in part because the judge said, and this is a judge very familiar to us at this point, this was the original judge in the SFFA v. Harvard case, has also ruled in some of the F&A cases AC has brought forward. And what they said was essentially, "It's very clear that the administration is doing this as a punitive attack on Harvard, not in compliance with any federal, both First Amendment, Title VI, other areas of law that they purported to be. So unequivocal finding in favor of Harvard.
Next steps, though, the administration has already said they will appeal. Unfortunately, the president, as he's done in other cases where judges have ruled against him, has taken to talking about the judge, in this case very publicly, as being biased and other accusations not really supported by the facts. And so we will see. The administration clearly has no interest in backing down. What this will mean, you keep seeing reports about negotiations between Harvard and the administration. There are about a million think piece articles about does this strengthen Harvard? Does this strengthen the administration? Does this change the narrative? There's still a lot to be determined, and certainly the legal process is just moving forward. We are a long way from resolution.
Mushtaq Gunja: What implications, I don't know, Jon, I don't know that this is a fair question, but what implications are there for these institutions that are currently in, let me just call them settlement negotiations with the administration? I mean, in the normal course, a ruling that's in favor of an institution would strengthen their hand in later negotiations. Maybe that'll happen here. I mean, what's your take on that?
Jon Fansmith: Yeah, so I don't know that any of these institutions that are under negotiations are under any misconception that the administration's actions are legal. That's one of the things that's most frustrating about this. The administration is clearly operating outside what the law requires of them. The problem is it's really hard to be the institution and fight that out on court. I mean, we're in the stage, it's September and Harvard has reached the first stage of the legal process. It is incredibly expensive and time-consuming and distracting to mount a major legal defense against the federal government. This administration knows that. In many cases, negotiation may not be, idealistically, what we want, but it's also represents, from an individual institution's perspective, probably the best path forward depending on what that deal looks like. And so I think you look at a lot of institutions who are weighing these options, the calculus hasn't really changed.
Certainly they were in the right to begin with. Harvard was in the right to begin with. The administration is clearly in the wrong. But sadly, reality is not that the right side always wins. And the resources the administration has available to push this fight make it really hard to keep pushing back. So I don't know that things have changed. I will say, and you see this again and again, surveys of the American public, they do not like what the administration's doing. Interestingly, Gallup had a poll out last week of confidence in higher education institutions. Confidence in higher ed is rebounding, and it's rebounding among Republicans and independents even more than it is among Democrats. I think there's, if anything this administration has done in our favor, they have begun to bring home to people what it is colleges and universities actually do, and what they think about the value of those institutions in a way that's probably more reflective of reality than the narrative was two or three years ago.
Sarah Spreitzer: But Jon, at the same time, I saw that President Trump mentioned Columbia yesterday in his comments at the Museum of the Bible, where I was talking about religious freedom, and he brought up Columbia and said they'd paid a fine, but it wasn't enough. And I think for many of these institutions, as they're negotiating a settlement or whatever to free up their federal funding again, it's just the start of what the administration is asking, in some cases. And so it seems like the administration sees that as the initial opening salvo, whereas the institution may think, okay, well that's the settlement. Everything will go back to normal. And I mean, none of this is normal, but I think institutions are watching that very closely, that just because you settle doesn't mean that things will automatically go back to how they were.
Jon Fansmith: Yeah. And I will say what was interesting about the, and actually what he said was that he keeps being told by Leo Terrell and Pam Bondi, Leo Terrell's, the head of the anti-Semitism task force, Pam Bondi, the Attorney General, that they aren't settling for large enough sums of money. And in fact, there was a tweet earlier, end of last week, I think from Christopher Rufo making essentially the same point, that these deals haven't been punitive enough. So Sarah, to your point, there may be a undercurrent with this administration that looks at saying, "We're not dropping the hammer hard enough and we need to negotiate harder." I think the other thing I took away from the president's comments in his speech yesterday, the only thing he talked about was the dollar signs.
He didn't talk about any of the provisions of the settlements. He didn't talk, he basically said, "Look, we're addressing anti-religious discrimination and we got over 200 million from Colombia, got about 50 million from," it all came down to the dollar signs. And so I think I take your point, but to my mind, this administration isn't really looking to enact policy change. They're looking to win a media cycle and say, "We beat an institution." And the way the president certainly, at least publicly, is quantifying that as, what's the dollar amount we got? So yeah, I mean there's a funding aspect for it. Maybe they're going to push for bigger cash settlements as part of this process, but ultimately, it gives the lie to what the effort is. It's not to actually address discrimination or anything else.
Mushtaq Gunja: Yeah, I mean the idea of the punitive damages here is a little bit foreign to what would typically happen in the Title V, Title VII, Title IX context. I mean the remedy for some past problem is the amelioration of that problem. Dollars going to the United States Treasury, I mean I think, correct me if I'm wrong, but I think the Columbia dollars are just a check made out to the United States Treasury. Settlement with Brown has $50 million going to workforce development partners in Providence. Pretty different, actually. And the timeframes will look different. And the other thing about the large dollar signs, Jon, I mean, there's only a limited number of institutions that can be settling for tens of millions of dollars.
I mean, most of our institutions don't have those dollars, and those dollars are coming from tuition. I mean, most institutions don't have endowments that they could draw from or loans that they could take out. So I mean, there are only so many of these wins that the administration can have. It seems to me, though maybe I'm wrong about that. I mean, on the amelioration injunctive relief side, there are more institutions. But if that's not what he cares about, if that's not what they care about, then I don't know if they're going to get so many more of these. I guess I'll take the last word on that. Let me do, in the last couple of minutes that we have, can we tee up what's going on appropriations-wise? Because if I remember correctly, five months ago there was a six-month continuing resolution that is set to expire at the end of this coming month. Is that this month? September [inaudible 00:53:01]-
Sarah Spreitzer: Yeah, October. Yes.
Jon Fansmith: So technically they did a year-long continuing resolution-
Mushtaq Gunja: Oh, okay.
Jon Fansmith: That is funded out. Yeah, functionally was because they passed it halfway through the year or six month, but sorry-
Mushtaq Gunja: Jon, I'm asking the wrong question. Tell us where we are, my friend.
Jon Fansmith: So right now we are in fiscal year '25. That is, with some minor changes, is being funded at fiscal year '24 levels.
Sarah Spreitzer: Is it?
Jon Fansmith: Well, it's not. According to Congress, it is. According to the administration, we'll do what we want. This current fiscal year '25 ends on the end of September. October 1st is the start of the new fiscal year. The basic calculus is that Congress has to have something in place as of October 1st that says how the government is being funded or else the government goes into a shutdown. That can look like a lot of different things. What we have done basically every year over the last 10 or 15 years is that Congress buys themselves extra time to figure out a deal by doing what's called a short-term continuing resolution, or CR. Basically move the deadline back and fund the government at current levels. I don't know, I think Sarah would agree with me that we think that's probably what we will see in the next, well now Sarah's looking-
Sarah Spreitzer: No, you're right. I don't think there will be a shutdown.
Jon Fansmith: Yeah, I don't think, as of midnight on September 30th, that there will be a shutdown. I think we might see a shutdown during this cycle because of two key things. One is that Chuck Schumer in particular, and Democrats generally, got hammered for agreeing to the continuing resolution with Republicans and then seeing this administration not actually fund, put the money that Congress appropriated where they were directed to do it. And barring some really strong safeguards that their administration will actually do what the law requires them to do, Democrats don't have a lot of incentive to approve anything because if it's not going to be spent out anyway, why would you participate?
The other thing, of course, is that what we might see is, from this administration, proposals for massive cuts. And those, so far, have been reflected in the few places, mostly in the House. Senate, not so much, but you need Democratic votes to pass a funding bill. You'll need at least Senate Democrats to vote for this. And they are just not going to go along with big cuts to programs that matter to them. Not after all the cuts in reconciliation, not after the unwillingness administration to fund the programs they care about and because their constituency is looking for them to fight. So I think we might buy some time, but I do think we're going to get to a point where probably the process will break down because there's very little incentive, unlike in previous cycles, to bring Democrats to the table here.
Sarah Spreitzer: Well, and I think I'm more worried about what the administration has learned this year, that they can successfully pass a rescissions package. They can do a pocket rescission, they can change priorities and change congressional priorities in the funding cycle. And so what does the appropriations process even mean? We have both the House and the Senate rejected. The President's proposed 40% cut to the National Institutes of Health, but if NIH isn't funding grants, what does it matter how much money they give? So it'll be interesting to see how the end of this month plays out because it's not just what is going to happen with FY '26, but is there going to be anything said to the administration about not spending out all of the FY '25 funds?
Mushtaq Gunja: To me, this is why I'm much less, I don't know if the word optimistic is the right word. I'm just much less sure that we're going to have a continuing resolution. I don't know what it means for the Democrats to agree to a short-term continuing resolution, which requires 60 votes in the Senate. So it will require some Democrats. I don't know how they can agree when, they can agree to a dollar amount in a budget if those dollars just might not get spent by the administration, if the Trump folks can just do whatever they want with the dollars.
I don't understand what incentive there is for the Democrats to go along with the funding package. On the other hand, I mean, of course the politics might request that Democrats [inaudible 00:57:35] get blamed for shutdown, et cetera. We'll talk a lot more about this next time. In 45 seconds, 60 seconds, guys, I saw some house language, I think, earlier today, related to some potential cuts to SEOG. What do we know so far? What implications are there for higher ed? Is it too early for us to know? What do we know so far?
Jon Fansmith: So it really is playing out the way that it normally does. The House, where the majority party has pretty unilateral authority to move things forward. In this case, they're aligned to the president. They have put forward a budget that honestly was better than we expected, which is not to say that it's good. They preserved Pell funding. The administration would cut Pell by $1,700 approximately, but they didn't. The House budget still makes pretty massive cuts. They cut work study by 451 million. They thoroughly eliminate the SEOG, the Supplemental Educational Opportunity grants. There's cuts across the board in the House bill. It's really these two gaps. The Senate, for the most part, flat-funded and spent about $13 billion more at the Department of Education.
They had more money to spend because they gave themselves more money in that pool and they spent it so most programs are protected. The House gave themselves a much lower pool, so they had to implement cuts. The question isn't really what did the House do or what did the Senate do? It's ultimately where you started, Mushtaq. What are the political considerations? What gets you to the top line number? And then once you know a top line number that has bipartisan support, who wins the battle of priorities about how that's allocated out among those programs? And we're still pretty early in that process. Also, just make a pitch to folks that this is a place where your voices can be very important.
Your members of Congress are going to weigh dozens, hundreds, thousands of programs in terms of what their priorities are for funding and hearing from their constituents that a Pell Grant's helping them go to college, that SEOG is the program that made the difference between affording the school they wanted to go to and maybe another option, weigh in. It literally can be a simple phone call, email, social media post about the value of these programs. They will stack those up and count them. And when the considerations come in, that really does matter on how they'll vote. So I saw somebody asking for a positive. I don't know if that's a positive, but it is a call to action. This is a time when members of Congress are especially attuned to what their constituents want. If they don't hear from you, you drop down the priority list.
Sarah Spreitzer: Yep. And Jon and I were just up on Capitol Hill today, and there were a lot of fly-in days. There were a lot of people up there talking about their priorities and the appropriations process. So it's not too late in the game to engage with your member and talk about those funding priorities.
Mushtaq Gunja: I'll just do one little bit of hopefulness too. School has started. I love fall. I love being back in school. I love seeing the students in the classroom. I was in the classroom yesterday, great discussion about prosecutorial charging decisions in my advanced criminal procedure class. I mean, if nothing else, the students are amazing. That's why we're here. That's why we do what we do. We're changing lives, and they're changing our lives too. So I mean, I'm sorry we were so gloomy, but we're here for our students. And just keeping that in the center, I think, is so important for all of us. So, Jon, Sarah, anything else? Last call.
Sarah Spreitzer: It's great to be back.
Mushtaq Gunja: It's great to be back.
Jon Fansmith: It's great to be back. And thanks everybody for joining too.
Mushtaq Gunja: We'll see you in a couple of weeks. Bye all. Thank you for joining us on dotEDU. If you enjoyed the show, please consider subscribing, rating and leaving a review on your favorite podcast platform. Your feedback is important to us and it helps other policy [inaudible 01:01:29] discover our show. Don't forget to follow ACE on social media to stay updated on upcoming episodes and other higher education content. You can find us on X, LinkedIn and Instagram. And of course, if you have any questions, comments, or suggestions for future episodes, please feel free to reach out to us at podcast @acenetdotEDU. Love hearing from our listeners and who knows, your input might inspire a future episode.