- May 23, 2018
The National Association of Scholars is pleased that the PROSPER Act, which would reauthorize and update the Higher Education Act, introduces some important reforms to higher education, many of them in line with NAS’s proposed Freedom to Learn Amendments. However, the PROSPER Act lacks the necessary protections for due process, educational rigor, and other important principles of higher education. It takes great strides toward empowering students to report discriminatory speech codes, but lacks mechanisms to encourage colleges and universities to adopt policies that adequately protect freedom of speech and expression.
NAS urges Congress to pass a version of PROSPER that builds on the reforms already present in the current bill. We urge NAS members and concerned citizens to tell their members of Congress that while the PROSPER Act is a strong start toward reforming higher education, it must be amended to bolster its reforms.
Freedom of Speech - Partly Fulfilled
NAS welcomes the PROSPER Act’s requirement for colleges and universities to disclose annually to the Secretary of Education and to all students its policies on speech. We also welcome the statement that it is the "sense of Congress" that "free speech zones and restrictive speech codes are inherently at odds with the freedom of speech guaranteed by the First Amendment of the Constitution" and that "no public institution directly or indirectly receiving financial assistance under this Act should restrict the speech of such institution’s students through such zones or codes.’’
NAS supports Representative Garrett’s amendment to institute a process by which students can file complaints with the Secretary of Education alleging misbehavior by their colleges or universities in enforcing secret speech codes or failing to abide by published campus speech and expression policies. We also support the amendment provision that requires the Secretary to investigate these complaints, to require colleges and universities to enforce their own policies fairly, and to refer violations of the First Amendment to the Department of Justice.
However, the bill still fails to provide an effective mechanism to encourage colleges to actually protect free speech. The Secretary of Education is authorized to investigate only after students file complaints, and only if these complaints involve a campus policy that the university has failed to disclose or enforce. What if a university adopts a policy that undermines free speech, but discloses this policy to the Secretary of Education and enforces it consistently? According to the PROSPER Act, such a university is in full compliance with the law.
We urge Congress to adopt language authorizing the Secretary of Education or an independent commission to investigate whether colleges and universities have been fulfilling their responsibilities to protect student speech and association rights. Colleges and universities found to be malfeasant should be denied eligibility for Title IV student loans and grants.
We also urge Congress to require colleges to submit an annual report on steps taken to uphold free speech and free 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.
Finally, Congress should define “protected speech” and “protected association” 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; and the right of student associations (especially religious ones) to determine eligibility for membership and qualification for positions of leadership. These rights must not abridged by institutional mandates for race, class, sex, gender, or gender-preference inclusivity.
Freedom of Association and Religious Freedom - Fulfilled
NAS is pleased that the PROSPER Act heeds our call to require colleges and universities to treat religious student organizations on par with secular student organizations. It forbids colleges from discriminating against religious organizations by singling them out to deny access to campus facilities, recognition as official student groups, or the ability to determine criteria for membership or leadership (such as by a statement of faith).
We are also pleased that the PROSPER Act prohibits any government entity from penalizing religious colleges or universities for carrying out their religious missions or taking actions related to their religious affiliations. The bill also provides protections for religious institutions that have been targeted by accreditors. It allows religious colleges and universities that have lost accreditation on the basis of their religious missions or affiliations to remain temporarily certified as institutions of higher education while they seek alternative accreditation.
Accreditation – Not Fulfilled
The PROSPER Act fails to reform the fundamentally flawed system of accreditation.
It tinkers with the structure by requiring accrediting agencies to have at least one representative from the business community on each agency's board. It also reduces the purpose of accreditation to evaluating whether colleges or universities successfully meet their self-defined missions.
The current system has the unintended consequences of making the stakes of accreditation 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. Congress should divorce general accreditation from serving as the gateway for institutional eligibility to receive federal grants and loans.
We urge Congress 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 an 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 forgo voluntary educational assessment will make themselves conspicuously suspect.
Further, Congress should require accreditors to treat non-traditional institutions fairly. It should direct Title IV funds to colleges and universities accredited by financial accrediting bodies that also accredit Internet-only institutions.
Marketplace Competition - Fulfilled
The PROSPER Act would repeal numerous burdensome regulations that treated for-profits and online colleges unfairly. It would repeal the “gainful employment rule” and forbid the Secretary of Education from creating or enforcing future regulations on the basis of the “gainful employment rule,” which had singled out for-profit and non-traditional institutions to prove the value of their degrees. PROSPER would also permit online schools to obtain state authorization only in states where they have physical locations, rather than in every state in which they have students, as previously required.
NAS is pleased that the PROSPER Act would make it easier for new entrants into the field of higher education.
Academic Rigor – Not Fulfilled
Colleges and universities have repeatedly lowered their admissions standards, resulting in lower academic standards. Congress must define basic expectations for what higher education should entail, including basic quantitative knowledge, basic history, and basic science.
Congress must also distinguish remedial education from college enrollment. Colleges and universities may choose to run remedial programs on the side, but they should not be permitted to accept Title IV student loans for remedial courses. The current approach is only superficially generous to remedial students. The vast majority do not go on to complete a college degree.
American History for Freedom – Not Fulfilled
We are alarmed that the PROSPER Act would repeal the American History for Freedom Program, which would support programs that teach traditional American history. NAS founder and board member Stephen H. Balch played a key role in the creation of this program, which was authorized in 2008 but has never been funded.
We urge Congress to reinstate the American History for Freedom Program, and in a separate appropriations bill, to fund the program.
Cap on Student Loans – Fulfilled
We are delighted that the PROSPER Act, in line with our proposals, would limit the amount of money that students and parents can borrow from the federal government to pay for college. Title IV student aid has driven up the price of education, incentivizing colleges and universities to raise tuition, and miring students and parents in unmanageable levels of debt. We applaud Congress for following NAS’s recommendation on this common-sense reform.
The PROSPER Act institutes annual and aggregate loan limits, tiered by year and differentiated by independent undergraduate students, dependent undergraduate students, graduate students, and parents, with higher caps for medical students. For instance, a dependent undergraduate who has not finished the first year of college may borrow $7,500, followed by $8,500 the next year, and $9,500 in the third year and following until finishing the program, with an aggregate cap of $39,000. Independent undergraduate students may borrow up to $60,250 from the federal government; parents may borrow up to $56,250 per student; and graduate/professional students may borrow up to $150,000. The annual caps take effect immediately for new borrowers, and in summer 2019 for current borrowers.
We applaud Congress for introducing this important reform to federal student loans.
Skin in the Game – Fulfilled
Colleges and universities must have some “skin in the game” to incentivize them to establish high admissions standards and hold them accountable for students who fail to succeed. We are pleased that the PROSPER Act heeds our call.
The PROSPER Act makes programs whose students have low loan repayment rates (less than 45% for the last 3 years) ineligible for their students to receive federal loans. It requires the Secretary of Education to publish the repayment rates for each program within each college or university—providing a clear way to identify and call out ill-performing programs.
PROSPER also requires that when a student withdraws from an institution, within 60 days the institution must return to the federal government a portion of the federal grant or loan the student received for that semester.
One Grant, One Loan – Fulfilled
NAS urged Congress to simplify the maze of federal student aid into a single grant program and a single loan program. We are pleased that the PROSPER Act would do so.
Other Title IV Student Aid Reforms – Not Fulfilled
While the PROSPER Act does make some significant reforms to Title IV student loans and grants, it fails to include additional reforms that would put both students and institutions of higher education on a firmer footing.
Congress must make income-share agreements enforceable, a prerequisite to incentivizing private lenders to enter the income-share agreement market. Income-share agreements are a simple, cost-effective, market-based alternative to federal bureaucracy and intervention.
Congress must also prioritize grants and federal student loans for students with the most need, limiting these programs to students whose family income is below 150% of the poverty level. Aid should come with modest academic expectations, such as maintaining a 2.5 grade point average. And there should be a maximum number of years (five) for which students can receive federal assistance.
Rather than maintain the current system, with power concentrated in the federal Department of Education, Congress should transfer financial authority to the states. It should transfer 50% of the current Title IV allotment to the states over the next ten years—5% a year—and start in two years.
Finally, Congress should require colleges to spend a minimum percentage of income from the endowment to subsidize students’ costs, thereby lowering tuition.
Homeschooled Students – Partly Fulfilled
The PROSPER Act rightly clarifies that "a student who has completed a secondary school education in a home school setting that is treated as a home school or private school under State law" is eligible for federal assistance for college tuition. This addresses the problem of some states, including New York and California, discriminating against homeschooled students in college admissions.
We approve of PROSPER’s clarification on this point, but we urge Congress to add to Title I language officially declaring that homeschooled students who have finished the 12th grade are fully qualified high school graduates.
Foreign Gift Disclosure – Not Fulfilled
NAS is alarmed that the PROSPER Act would entirely repeal Title I language requiring colleges and universities to disclose gifts and contracts from foreign donors. These disclosure requirements are crucial to identifying potentially compromising gifts and to providing transparency.
In a separate bill, the Foreign Influence Transparency Act, Representative Joe Wilson, Senator Tom Cotton, and Senator Marco Rubio have proposed strengthening these disclosure requirements, in part to address the problem NAS identified in Chinese government-funded Confucius Institutes. We are pleased with the introduction of this separate bill, but urge Congress to include strong disclosure requirements in the PROSPER Act.
We call on Congress to reinstate these disclosure requirements, and to strengthen them. The disclosure threshold should be lowered from $250,000 to $50,000, and should include the value of in-kind gifts. All disclosures should be publicly accessible on the Department of Education’s website.
Peer Review – Not Fulfilled
When seeking review on Department of Education documents, the Secretary should seek “expert review” rather than “peer review.” “Peer review” has increasingly been compromised by higher education’s drift into ideological conformity and groupthink. Congress should advise the Secretary to seek reviewers who are of genuinely independent minds.
Speaker Fees – Not Fulfilled
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 should be required to disclose such fees and emoluments in excess of $20,000.
Teacher Credentials – Not Fulfilled
The PROSPER Act failed to take this opportunity to thoroughly review the radical decline in the quality of teachers’ colleges. Congress must institute reforms that address the notorious shift in schools of education toward elevating pedagogical theory over the cultivation of both classroom skills and subject knowledge, and becoming obsessed with promoting social justice ideologies at the expense of open-minded inquiry.
Reducing Administrative Bloat – Not Fulfilled
Congress should require colleges to reduce the proportion of college administrators to faculty members (proportion to be determined) as a condition of receiving federal Title IV funds.
Charter of Academic Rights – Not Fulfilled
The PROSPER Act should require colleges to sign a charter of academic rights, said charter to be drafted by a Presidential Commission appointed for that purpose.
Illegal Immigration – Not Fulfilled
Colleges should be required to verify that they are not “sanctuary campuses.” 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 Immigration and Customs Enforcement.
Due Process and Title IX – Partly Fulfilled
We are pleased that the PROSPER Act requires the Secretary of Education to create training materials for college officials conducting investigations and disciplinary proceedings. We had urged Congress to establish federal licensing requirements for Title IX administrators, with material on judicial procedures that include 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.
The PROSPER Act takes a step toward improving fairness for both the accuser and the accused in allegations of sexual misconduct. It requires that investigations and any disciplinary proceedings must be “prompt, impartial, and fair to both the accuser and the accused." Colleges would be required to provide all parties with written notice of the allegation at least two weeks prior to the hearing, including information on rights and responsibilities, relevant details of the allegation, and sanctions that may be imposed. They would have to provide the accused an opportunity to contest the allegation and access to evidence one week before any hearing. They would be required to ensure there are no conflicts of interest and no commingling of administrative or adjudicative roles. The investigation would be required to be conducted by officials with annual education on issues related to sexual assault and proper investigations that provide fairness for both the accuser and the accused.
However, the PROSPER Act misses some key pieces of due process and fairness. It must also require colleges to guarantee the presumption of innocence, the right to legal counsel, the right to face one’s accuser, and the right at all times to speak publicly about any case.
We are also concerned that the PROSPER Act would permit each institution to establish its own standard of evidence, so long as the standard is "not arbitrary or capricious and is applied consistently throughout all such proceedings." This does not address the issue of colleges and universities that have decided to use the “preponderance of evidence” standard, which declares a defendant guilty on the basis of more than 50% of the evidence, in contrast with higher standards such as “clear and convincing evidence.”
Local Law Enforcement and Reported Crimes – Partly Fulfilled
We are pleased that the PROSPER Act encourages colleges and universities to enter into memoranda of agreement with local law enforcement regarding the protocols and responsibilities for dealing with sexual assault. We warned of the dangers of colleges investigating, trying, and deciding punishment for alleged crimes without the involvement of local law enforcement.
But we urge Congress to require, rather than merely encourage, colleges and universities to cooperate with law enforcement officials when handling alleged felonies.
Title IX and Sex – Not Fulfilled
The PROSPER Act fails to 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. It also fails to define “sex” as biological, not mental, emotional, or dependent on an individual’s self-perception.
Sustainability – Fulfilled
We are pleased that the PROSPER Act would repeal the authorization for federally-funded sustainability planning grants. Sustainability, as NAS showed in our 2015 report, Sustainability: Higher Education’s New Fundamentalism, is a political movement that has no place in the college curriculum or administration.
The PROSPER Act provides a strong start toward fixing many of the problems in higher education. We thank Congress for streamlining and partly reforming the system of Title IV student aid, improving the transparency for college speech codes, adding strong protections for religious freedom and freedom of expression, removing the inappropriate sustainability grants, improving the status of homeschooled students, partly improving protections for due process, and supporting market competition in higher education.
We urge Congress to build on this base by strengthening protections for freedom of speech; fixing the broken system of accreditation; strengthening the Title IV student aid system by limiting aid to the neediest students and incentivizing private solutions to student loans; reinstating and strengthening transparency for foreign gifts; strengthening due process and the presumption of innocence; reinstating the American History for Freedom program; and adopting the other recommendations laid out above.
The PROSPER Act addresses many of the problems in higher education today. But if it is to complete the task of setting American higher education on a firm foundation, the PROSPER Act must be strengthened.