NAICU Washington Update

Senate Rule Precludes Private College Protection in Student Aid Bill

November 10, 2009

A key factor in NAICU's ability to support HR 3221, the House's version of President Obama's student aid reform bill, was the inclusion of a Rule of Construction. The rule made it possible for the private college sector to participate in the president's 2020 graduation initiative without the threat of inappropriate government intrusion (See "President's Student Aid Proposal Includes Special Recognition for Private Colleges," Washington Update, 9/28/09).

However, because the Senate is using the "budget reconciliation" process, which comes with strict rules, to move the student aid bill, the Rule of Construction will not be included in that chamber's version of the legislation.

As a result, if Congress and the administration still insist on using states as reform vehicles for improving college completion rates, private colleges could be faced with the difficult choice of submitting to increased state oversight or opposing the student aid bill altogether.

NAICU is trying to find an alternate approach, which would carve the private sector out of the state program mandates, while still meeting the requirements of the Senate's Byrd Rule.

What Happens When the Byrd Rule Is Violated

Because the Senate is using budget reconciliation to move the student aid bill, the legislation cannot be filibustered. Therefore only 51 votes are needed to pass it.

Under the Byrd Rule, all provisions included in the bill must be essential to spending or saving money.

If a senator wishes to question whether a provision is essential, he or she may raise a point of order against the provision. It is then up to the Senate parliamentarian to rule on the matter. If the parliamentarian rules that a section of the legislation is non-essential, the only way the language can remain in the bill is if 61 senators vote to override the parliamentarian.

The parliamentarian has already indicated that the Rule of Construction would not meet his test.

The rules get even tougher when a reconciliation bill comes back from conference for final approval by the Senate. Conference reports cannot be amended. So, if any language in a conference report is changed due to a point of order, the entire bill dies.

If NAICU's Rule of Construction was included in the final conference report, any senator who wanted to sink the entire bill for any reason could do so simply by raising a point of order on the provision. If health care reform is linked with the higher education legislation (see "Hurry Up and Wait Again for Higher Education Legislation," Washington Update, 10/8/09), the Rule of Construction could allow one Senator to bring down the entire higher education and health care package.

Are there alternatives?

The best alternative is for the president's efforts on improving persistence to be directed through an open and fair national competition, without mandates on institutions or the involvement of state governments in areas traditionally left to colleges. That was NAICU's first approach in both the House and the Senate.

However, Congress and the administration are convinced that if true higher education reform is going to happen, state agencies must be involved. Different versions of the bill engage states in such things as setting benchmarks, implementing articulation agreements, and examining cost of attendance. While the House was willing to protect the independence of private colleges by including the Rule of Construction, the Senate cannot do so. Neither body has been willing to lessen state authority to a level that would prevent states from potentially assuming inappropriate control of private colleges.

NAICU is now seeking a solution that removes private colleges from any state mandates, but makes it possible for states to fund private college persistence efforts, if the state so desired. This is not as good an outcome as the Rule of Construction, which allowed private colleges to participate if they desired, without fear of coming under state mandates.

Student Unit Record Data Systems

The fate of the student unit record data systems in the Senate bill is unclear. Initial language leaked about a month ago had a very robust vision of what the emerging state systems would look like. It now appears the Senate is amending that approach, but to an unknown degree. The detailed requirements for these systems raised concerns among many higher education groups.

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