NAICU Washington Update

NDAA Passes House without Controversial Higher Education Amendments

December 10, 2021

After months of disagreements over how to proceed on the annual National Defense Authorization Act (NDAA), Congress has at last negotiated a final bill that the House passed this week and sent to the Senate, which is expected to take it up very soon.  

Of importance to higher education is that the final bill does not include the controversial higher education amendments that were contained in previous versions, including provisions related to foreign influence in academic research, cybersecurity, and disclosures about education materials involving critical race theory. 

The United States Competition and Innovation Act (USICA) was initially added to the Senate version of the NDAA, but the language was ultimately pulled because the House does not yet have a companion bill. Inclusion of the provisions in USICA would have been a challenge for higher education because while the bill provides for a significant investment in federally-funded research, it also included significant restrictions on foreign students, faculty, and entities. 

Among the most controversial of these proposed restrictions were lowering the threshold for reporting foreign gifts under Section 117 of the Higher Education Act (HEA) from $250,000 to $50,000, and creating a new HEA Section 124 requiring institutions that receive $5 million or more in research funds to maintain a database of foreign gifts to institutions, programs, faculty, and staff.  Both of these restrictions would have resulted in increased reporting requirements for colleges and universities.  Additionally, the bill would have added a new provision requiring the Committee on Foreign Investment in the United States to review foreign gifts to colleges and universities over $1 million for potential national security concerns. 

The amendment regarding disclosures related to critical race theory was added to the NDAA more recently. The controversial provision would have required colleges and universities with Department of Defense contracts to make publically available on their websites all diversity, equal opportunity, equity, inclusion, or tolerance materials and policies for review and identification of critical race theory or similar theoretical instruction. Because the provision would have imposed a significant regulatory burden on colleges and universities, the higher education community advocated successfully for this provision to be removed from the NDAA.  

Language that would have required institutions of higher education to report cybersecurity incidents was also dropped from the bill. 

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