Washington Update

NSF Releases JASON Report on Foreign Influence
In early December, the National Science Foundation (NSF) released the JASON report on Fundamental Research Security. The NSF commissioned JASON, an independent science advisory group, to “enhance the agency’s understanding of the threats to basic research posed by foreign governments that have taken actions that violate the principles of scientific ethics and research integrity.”

The report recommends expanding the scope of disclosures of commitment and actual or potential conflicts of interest to include more than just financial conflicts. It also says failures to fully disclose should be investigated and adjudicated by the NSF and by universities with similar consequences to those in place for scientific misconduct. Furthermore, the report endorses education and training in scientific ethics at universities that cover examples of conflicts of interest and commitment. Lastly, the report recommends the development and implementation of a strategic plan to maintain U.S. competitiveness for top scientific talent globally.

The report reaffirmed the value of openness and international collaboration in scientific research. Of particular note, the report reiterates the principles laid out in the National Security Decision Directive 189, “which make clear that fundamental research should remain unrestricted to the fullest extent possible and should discourage the use of new Controlled Unclassified Information definitions as a mechanism to erect intermediate-level boundaries around fundamental research areas.”

ED Announces New Section 117 Foreign Gift and Contract Reporting System
On December 23, the Department of Education (ED) announced plans to allow institutions to choose between its newly proposed Sec. 117 foreign gift and contract information collection system or the current reporting system for the January 31 required reporting deadline, provided that the Department of Education’s request to the Office of Management and Budget (OMB) is approved.

The announcement did not alter OMB’s review of the proposal. OMB and ED are still in negotiations over possible changes to the proposed “information collection.”

House to Consider Repeal of Borrower Defense to Repayment Rule
The House of Representatives this week is considering under its Congressional Review Act authority a repeal of the Trump administration’s Borrower Defense to Repayment (BDR) rule, H.J. Res. 76, introduced by Representative Susie Lee (D-NV). While the House is expected to approve the measure, the Senate is not expected to take it up.

Under BDR, a borrower alleging fraud or misrepresentation by an institution of higher education can petition the Department of Education (ED) for loan forgiveness. ED can then require reimbursement from the institution.

In the aftermath of the collapse of Corinthian Colleges, the Obama administration significantly expanded opportunities for students to submit claims. In a comment letter at the time, APLU expressed agreement with ED’s intention to provide a clearer path for students who have been victims of fraud to receive the debt forgiveness they are owed. The letter also raised concerns that the Obama administration’s rule included ambiguous definitions of the kind of institutional conduct that would give rise to a meritorious BDR claim as well as a lack of a process for institutions to receive notice and an opportunity to be heard.

In 2018, APLU helped develop and signed a higher education association comment letter expressing significant concerns with the Trump administration’s proposed changes to the regulations that in stark contrast to the Obama administration rule would make it unreasonably difficult for borrowers to submit successful claims.

CRS Releases Overview on Major Changes to CAA
Last Tuesday, the Congressional Research Service released a new report on the College Affordability Act (CAA), which is House Democrats’ proposed reauthorization of the Higher Education Act. The report summarizes the key changes made throughout the proposed comprehensive reauthorization, including expanding availability of financial aid, modifying accountability requirements, expanding student services, and creating new grants to states through the proposed free community college program.

APLU has also created a chart with a section by section analysis of the bill and sent a letter to House Education and Labor Committee leadership with feedback. The analysis is based on the manager’s amendment introduced during mark-up and includes all additional amendments that were approved (the amended bill text has not yet been made public). APLU expects the legislation to reach the House Floor for consideration this year.

Higher Ed Community Comments on New USCIS Proposed Fees
Last month, APLU joined the higher education community and industry partners in submitting comments to the U.S. Citizenship and Immigration Services (USCIS) that express concerns with the Department of Homeland Security’s updated proposed fee schedule for immigration and naturalization services. The proposed rule would adjust “fees by a weighted average increase of 21 percent, add new fees, and make other changes, including form changes and the introduction of several new forms.”

Of particular interest, the fee to renew Deferred Action for Childhood Arrivals (DACA) applications would increase to $275 (previously free) and H-1 visas would increase from $460 to $560. The American Immigration Lawyers Association (AILA) has a chart of changes to the current fee schedule.

Supreme Court Declines to Hear University of Minnesota Patent Case
The U.S. Supreme Court denied the University of Minnesota’s petition to review its case relative to state sovereign immunity and the United States Patent and Trademark Office’s administrative process for challenging patents, Inter Partes Review (IPR).

APLU filed an amicus brief in support of the university’s petition for the court to review the case, arguing that stripping public universities of state sovereign immunity from IPR proceedings “threatens the development of university discoveries that Congress has sought to foster” through Bayh-Dole and technology transfer. With the Supreme Court declining to hear the case, the Federal Circuit Court’s decision, which held categorically that “state sovereign immunity does not apply to IPR proceedings,” stands.