Washington Update

Senate “Skinny” Relief Package Fails to Advance; House Problem Solvers Caucus Release Plan
Last week, Senate Republicans failed to advance their “skinny” Phase IV COVID-19 relief package on a 52-47 vote. The bill did not garner any votes from Democrats, who criticized Leader Mitch McConnell’s (R-KY) approach of a more limited relief bill than the House-passed HEROES Act. Both chambers and the White House remain deadlocked on the price tag for Phase IV legislation, particularly relief for state and local governments. While Treasury Secretary Steve Mnuchin has indicated a willingness to increase to $1.5 trillion, Democratic leaders continue to push for a $2.2 trillion package. An agreement before Congress recesses at the end of the month for the election seems elusive at this point.

The House Problem Solvers Caucus, which consists of 25 Republicans and 25 Democrats, released its own Phase IV COVID-19 emergency supplemental plan in an attempt to help restart negotiations. The plan includes $30 billion for higher education institutions and liability protections among other measures. The proposal was not warmly received by House Democratic leadership and key committee chairs.

House Science Committee Hearing “The Impact of the COVID-19 Crisis on University Research”
Last week, the House Science, Space, and Technology (HSST) Subcommittee on Research and Technology held a hearing on “The Impact of the COVID-19 Crisis on University Research.” The hearing focused on two bills endorsed by APLU, H.R. 7308 (Senate companion legislation S.4286), the Research Investment to Spark the Economy (RISE) Act, and H.R. 8044, the Supporting Early Career Researchers Act. The RISE Act would authorize $26 billion to support research impacted by the COVID-19 pandemic while the Supporting Early Career Researchers Act would forestall the loss of research talent by establishing a temporary early career research fellowship program.

During the hearing, witnesses from APLU institutions, the University of Illinois System, Oakland University, and Purdue University, provided first-hand testimony of how the pandemic has impeded university research, steps institutions are taking to meet the challenges of reopening campuses and keeping labs operational, and the long-term negative impacts COVID-19 will have on the nation’s research enterprise and workforce if federal research agencies are not granted much-needed supplemental relief.

Department of Education Releases Final Free Inquiry and Religious Liberty Rule
On September 9, the Department of Education (ED) released the final rule on “free inquiry and religious liberty.” The rule will be effective 60 days after publication in the Federal Register.

The concerns APLU expressed in comment letter when the notice of proposed rulemaking was published remain a problem in the final rule. The rule would require public institutions to abide by the First Amendment as a “material condition” of receiving a Department of Education grant. Noncompliance is determined by a “final, non-default judgment” by a state or federal court that the institution or any of its employees, acting in their official capacity, violated the First Amendment. Institutions must notify the Department of final judgments within 45 days. The rule applies to Department of Education funding received by institutions outside of Title IV federal student aid. ED maintains discretion on the severity of the penalty to apply to an institution’s funding.

The rule also requires that public universities not deny to religious student organizations any “right, benefit, or privilege (including full access to the facilities of the public institution and official recognition of the organization) afforded to other student organizations” because of the religious student organization’s “beliefs, practices, policies, speech, membership standards, or leadership standards.”

APLU released a statement on the final rule reiterating some concerns expressed in its comment letter, noting that it is “unnecessary, misguided, and deeply harmful” to so significantly raise the stakes of First Amendment litigation in attaching penalties with Department of Education funding.

ED Issues Final Distance Education and Innovation Regs
The Department of Education (ED) published final distance education and innovation regulations. The regulations were developed in 2019 as part of the negotiated rulemaking for higher education. The regulations change the definitions of distance education and correspondence courses, as well as the requirements of “regular and substantive interaction” between students and faculty and the permissibility of engaging instructional teams in the delivery of education through distance learning. The regulations also define policies and clarify eligibility requirements for direct assessment programs, change reporting requirements for contracting with third-party providers for teaching courses, and more. The regulations are effective July 1, 2021, but the Secretary has permitted institutions to implement these provisions early, effective September 2, 2020.

DHS H-1B Interim Final Rule Heads to OMB for Review
The Department of Homeland Security (DHS) submitted its “Strengthening the H-1B Nonimmigrant Visa Classification Program” to the White House Office of Management and Budget (OMB) for review. The rule, being considered as an interim final rule with no public comment period, would amend the definitions of specialty occupation and an employer-employee relationship. The Department claims the new rule would “increase focus on obtaining the best and the brightest foreign nationals via the H-1B program, and revise the definition of employment and employer-employee relationship to better protect U.S. workers and wages. In addition, DHS will propose additional requirements designed to ensure employers pay appropriate wages to H-1B visa holders.”

In June, the White House issued a proclamation suspending the issuance of new H-1B visas through December 31, 2020 following pressure from Republican members of the House and Senate who argued that unemployed Americans and recent graduates should not have to compete against H-1B workers for jobs during the COVID-19 pandemic. The proclamation is currently being challenged in court by several corporations. APLU continues to work with industry partners to defend the importance of the H-1B program and other critically important nonimmigrant visa programs.