Advocacy/College Students/IECA's Blog/student-athletes

The NCAA & Intellectual Property: The State of Play on NIL Reform

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What is NIL, and how did we get here?

Defining NIL

NIL (Name/Image/Likeness) is shorthand for a student-athlete’s intellectual property rights (their name, image, and likeness).

A Brief History of How We Got Here

It is important to put the current conversation about NIL reform in context. The NCAA was founded after a White House meeting in which Teddy Roosevelt met Ivy League football coaches and administrators to push them into adopting rules to make football safer. (There had been a rash of student deaths and injuries playing the unregulated new game.) The newly minted organization, which became the NCAA in 1910, was founded on three major principles: mandatory football helmets, adopting Harvard’s rules rather than Yale’s (including the invention of the forward pass), and a strict ban on recruiting or offering any financial compensation to student-athletes. It is important to note the NCAA did not develop enforcement mechanisms until the 1950s. These enforcement mechanisms were adopted alongside the recognition that schools COULD provide “athletically related financial aid” known as athletic scholarships.

Fast forward to 2009 when a former UCLA basketball player, Ed O’Bannon, sued the NCAA (along with EA Sports and the Collegiate Licensing Company) for using his likeness in a video game without credit or permission. It was clear that the NCAA’s legal position in this case was exceptionally weak and that continuing to monetize student-athlete’s intellectual property without compensation was becoming untenable. In fact, EA Sports and CLC settled the lawsuit and paid out $40 million to be distributed to the student-athletes whose likenesses had been used without permission, but the NCAA took the case to trial and lost; this established a legal precedent that it could not monetize student-athlete’s intellectual property without consent, providing a roadmap for more class action lawsuits based on antitrust law. The NCAA has lost several subsequent challenges and is currently enjoined from enforcing bylaws limiting NIL payments and on transfer limitations.

NIL reform has also been adopted by individual states. Many states passed legislation to mandate students at the college (and in many states the high school level) be able to freely profit from their intellectual property (see Figures 1 and 2).

The State of Play Today

What has developed is a three-tiered NIL system. The top tier impacts students who develop significant commercial value and can monetize that value individually.

The most broadly influential tier on the college side is made up of NIL “collectives.” These collectives are independent entities that come together to support athletics at a specific college. They offer prospective students compensation as an inducement to attend and/or to remain at the school and are responsible for the majority of NIL value right now.

There is also a low-value/exploitative tier of NIL. This tier includes companies that purchase intellectual property for minimal payments, barter, or just the promise of possible payment. Their business model involves small-scale investment, inducing students to give up their intellectual property without understanding its value.

Advising Students

In this environment, it is very important for students who DO monetize their NIL rights in high school to make sure their contracts sunset prior to their enrollment in college so they have maximum ability to negotiate with the college collectives. Once the collective deal (and athletic scholarship) is secured, THEN the student can monetize their rights with additional deals. It is also critical to have all contracts reviewed by a competent and knowledgeable intellectual property attorney. Most schools with significant NIL collectives can make these experts available to their students at minimal/no cost.

For students who are NOT looking at NIL deals based on their athletic profile or social media influence, there is a significant space for entrepreneurship and creativity to build value. Advisors should be encouraging students to explore this space even for athletes who are not attracting elite offers!

I believe that IECs should advocate for colleges to support and enhance the value of their student’s intellectual property. This would push more students into top-tier business agreements and generate more value for everyone. It is critical that colleges develop workable rules for the second tier “collectives.” An unregulated arms race is inevitably going to exploit some students; making sure that the benefits are spread more widely and in a way that is congruent with the college’s educational mission is broadly good policy that could gain support across stakeholders. Finally, it is in everyone’s interest to protect student-athletes from exploitation by the lowest tier of actors in the NIL space. All these issues require legislative action and lobbying at both the state and federal levels. While I personally feel this is the right approach, there is no shortage of opinions about the best path forward.

Policy Possibilities

The current patchwork of state laws, temporary restraining orders, and legal opinions makes action via the NCAA legislative process problematic. Coming to grips with this new legal and commercial landscape will require all the stakeholders involved in intercollegiate athletics to collaborate in developing a new framework that can be adopted as federal legislation and executive branch regulation. From the NCAA’s perspective, the best-case scenario is legislation that provides the NCAA an exemption from antitrust law. But it could also mean federal legislation setting a framework for the compensation of student-athletes and/or empowering the NCAA to enforce member adopted legislation within certain defined parameters. NCAA member schools and executive leadership, especially among the College Football Playoff schools has an outsized influence to set the tone of this debate and needs to engage with this process in a strategic way with a unified agenda. This agenda has not been communicated either by college presidents or the NCAA executive staff, and we have not seen a clear process involving all stakeholders yet outlined.

In the absence of clear leadership from the NCAA, we have a variety of efforts at influencing policy coming from different actors. There is a highly publicized effort to unionize student-athletes with the idea that the NCAA would come to a collective bargaining agreement with some kind of NCAA Players Association. But this approach has several serious problems, including serial failure in court. Just this week, a highly publicized effort to re-classify student-athletes at Dartmouth as “employees” featuring the Dartmouth basketball team was challenged by the university and is currently under review by the NLRB. There are also a variety of lobbying efforts at the state level, but no state action solves the problem of a national organization needing national policy to provide clarity to its members.

Dave Morris, MEd, IECA (WA), College Athletic Advisor, can be reached at [email protected].

Advocacy/College Admissions/Financial Aid/IECA's Blog

IECA Urges Colleges to Adjust Deadlines Due to FAFSA Delays

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The US Department of Education’s Federal Student Aid office released an update this week announcing that the earliest the Department will begin transmitting FAFSA applicant information to schools and state agencies is the first half of March.

We are deeply concerned by the impact this further delay will have on students and families who are depending on financial aid offers in order to pursue their higher education goals. This disruption to the typical enrollment timeline is certain to create increased anxiety for all students depending on some sort of financial aid, especially low-income students navigating this already stressful and complex process.

We appreciate that some colleges and universities are already delaying their May 1 decision deadlines and urge that all follow suit in order to allow adequate time for students to weigh their offers.

IECA will continue to bring our members the latest information on changes to the FAFSA rollout, and how students and families will be impacted. Members can access our recorded webinar on the new FAFSA, join and follow discussions on the Member Network, and bring their questions to upcoming monthly member roundtables. We encourage you to continue to stay informed and patient during this challenging process, and to advise your client-families to do the same.

In early March, IECA leadership will meet with legislators on Capitol Hill for our second annual advocacy event. We will advocate for greater clarity in the financial aid award process through the standardization of college financial aid offers proposed in the Understanding the True Cost of College Act. We will also urge legislators to consider the challenges faced by students and families imposed by the new FAFSA rollout.

We will continue to advocate for the independent educational consulting profession and the best interests of our members, students, and families.

Advocacy/College Admissions/Financial Aid/IECA's Blog

IECA Advocates for Standardizing College Financial Aid Offers

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IECA supports standardizing college financial aid offers. The Understanding the True Cost of College Act introduced by Young Kim (R-CA) and Raja Krishnamoorthi (D-IL) and by Senator Chuck Grassley (R-IA) requires standard terminology and offer formats to assist colleges and universities, students and their families, secondary school and postsecondary counselors, and nonprofit consumer groups. IECA believes that financial aid transparency is a step toward greater access and opportunity for all students. We back legislation that provides financial aid clarity.

The call to standardize financial aid offers is not new. Mark Kantrowitz wrote about this topic in a 2007 article in Inside Higher Ed. In 2012 and 2013, a group of bipartisan senators introduced legislation to standardize student aid offers. Those senators included Tom Harkin, Marco Rubio, and Charles Grassley. Senator Grassley introduced Understanding the True Cost of College Act in 2019 with Tina Smith (D-MN) and Joni Ernst (R-IA).

There are other bills and a recently created task force to study the issue. IECA would like to see all higher education institutions use the same template so that students can easily compare offers. The Government Accountability Office (GAO) reported in early December 2022, after studying a sample of offers from 176 colleges and universities, that most were not using the recommended template from the Department of Education. The GAO recommends that Congress pass legislation that would include best practices for colleges regarding financial aid offers. Young Kim’s office has said that her legislation will be reintroduced this spring.

IECA believes it is time to require standardization. To join this effort, contact your representatives and let them know that financial aid transparency is an important issue to our college-going community and it is time to move forward by reintroducing and approving the True Cost of College Act.

College Admissions/college consulting/College Students/IECA's Blog/independent educational consulting

IECA Responds to Rick Singer’s Sentencing

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IECA responded to today’s sentencing of Rick Singer, mastermind of the “Operation Varsity Blues” college admissions scheme, which has included the conviction of more than 50 people.

While Singer’s wrongdoing has resulted in a jail sentence today, and both parents and athletic directors have been similarly found guilty, these punishments have not resulted in fixing the many problems vexing college admissions.

“The Varsity Blues scandal led colleges to review their admissions systems to make sure they were ethical and upstanding, but the broader issue of opaqueness continues to plague the college application process—and result in heightened student and parent anxiety,” said Mark Sklarow, CEO of IECA. “While we applaud the court for bringing Rick Singer to justice, we continue to advocate for greater transparency in admission criteria from college admissions offices.”

The steep decline in college acceptance rates further heightens the anxiety levels of students and families. With many colleges moving to test-optional admissions due to the pandemic, the pool of applicants has grown, and acceptance rates have fallen to record lows for many colleges and universities: most recently 3.19% for Harvard, 8.56% for Rice, and 9% for Tufts, among others.

Adding to this, access to college advising is unequal across the country and particularly strained in urban and rural public high schools, where the average student-to-counselor ratio is 455:1 and more than 700:1 in some areas. This leaves school counselors overburdened and students under-resourced.

How IECA Assures Parents the Highest Ethical Standards in College Advising

Independent college advisors who seek to join IECA go through an extensive application process designed to assure the public that unlike Singer, the advisor they are working with is knowledgeable, competent, and ethical. They must have a master’s degree (or equivalent), at least three years of admissions counseling experience, experience working with scores of students, and have visited 50 campuses before they can be considered for professional membership. In addition, all members must agree to abide by IECA’s Principles of Good Practice and submit their marketing materials for review to ensure they accurately reflect the independent educational consultant’s role.

IECA members sign an annual pledge that governs their interactions with colleges, students, and parents. They agree to avoid any action that distorts or misrepresents a student’s record or interferes with a university’s ability to accurately evaluate a student. Because IECA consultants are committed to the highest ethical standards of practice, families find that IECA members have the student’s best interest as their sole focus.

Recent years have seen tremendous growth in the independent educational consultant profession, with IECA’s membership now totaling more than 2,600 consultants in almost every state and 41 countries around the world (reflecting a 60% growth since the Varsity Blues scandal broke). Throughout its growth, however, it’s adherence to the highest standards in ethical, student-centered advising has remained unchanged.  According to Sklarow, “Our growth is a testament to the public’s reaction to the Varsity Blues scandal. Parents wanted a way to be guaranteed that their IEC was both capable and earnest in finding the best possible college or university for their child.”

Sklarow continued, “Our members are ethical, compassionate professionals who dedicate their careers to advising students and families on their individual paths to success. They focus on the unique student’s needs to help them have a successful experience wherever they choose to attend college.”

How IECA Members Help Students and Families Navigate College Admissions

Families who choose to work with an IECA member educational consultant to navigate the college admissions process benefit from the consultant’s expertise, professionalism, and unbiased viewpoint to find the best-fit college for their student.

IECA members have extensive, firsthand knowledge of colleges—gained from touring dozens of colleges, meeting with admission officers, and conducting their own research. An IECA member consultant offers individual attention, spending hours with each student and their family to learn the student’s personality, interests, qualifications, and aspirations.

Combining their vast knowledge and their understanding of the specific student, IECA member consultants then help find the best-fit colleges for the student—those that provide the best environment for the student’s academic, social, and personal growth and meet the student’s financial needs. An IECA member consultant walks the student and family through each step of the college application process, meaning reduced stress and anxiety for the student and family.

IECA members believe there are many great postsecondary options for every student, and no student should be made to feel that they must become something they are not to get accepted. Being and presenting one’s authentic self and demonstrating one’s own talents and abilities is a way of ensuring the right college fit. This is central to what an ethical independent educational consultant does.

IECA's Blog/supporting students

IECA Responds to Tragic Violence at Universities

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We are devastated by the tragic acts of violence at the University of Idaho and the University of Virginia. We extended our deepest sympathies to the families of the victims as well as the students, faculty, and staff at both universities, and their families.

We urge our members and your student and family clients to prioritize your mental health and wellness, both in the face of such horrific events and for long-term health and well-being. We also advocate for policies that focus on the mental health and wellness of our students and educators to help prevent such tragic events in the future.

You may find these resources helpful, as both parents and educators:

IECA's Blog/independent educational consulting/supporting students

IECA Advocates for Religious Tolerance and Inclusion

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IECA advocates for religious tolerance and inclusion and condemn all forms of antisemitism, extremism, hate, and bigotry. We believe no one should feel attacked or marginalized because of their religious beliefs, and that every student, family, and colleague should be treated with kindness, acceptance, and respect.

Disturbingly, antisemitism remains a persistent and serious problem in the US and globally. The Anti-Defamation League (ADL) reports that attacks on Jewish people and sites in the US were committed at record high levels in 2021, including hundreds at colleges and universities. We at IECA are deeply troubled by this intolerance and offer our support and empathy to our Jewish students, families, members, and affiliated professionals.

IECA is committed to helping families of all backgrounds have access to skilled and ethical academic or therapeutic guidance and to creating a diverse, equitable, and inclusive community. We welcome all individuals, regardless of age, citizenship status, culture, disability, ethnicity, gender identity or expression, learning differences, national origin, race, religion, sexual orientation, and socioeconomic status. Our work to promote equity, fairness, and inclusion must be constant.

We urge our members and colleagues to recognize and respond to instances of antisemitism, bigotry, and hate. Here are resources to help you take action today:

As leaders in education, we have an opportunity to model leadership that is focused on unity, support, and action. We must do our part to build a more tolerant, inclusive, and socially just society.

College Admissions/college consulting/College Students/IECA's Blog/Pro bono/supporting students

Introducing the AXS Companion to the Common Application

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The AXS Companion is now available for college-bound students to use!

College enrollment continues to decline while barriers for under-resourced students grow—but the AXS Companion to Common App, a new initiative by IECA, in partnership with Oregon State University, aims to reverse this trend by supporting these students as they begin their college journey.

Applying to college is already a complex and often stressful process, and first-generation, low-income, and underrepresented students of color have faced even greater hurdles to college during the pandemic: reduced or no access to college and school counselors; limited opportunities to access information and resources due to school closures; and a lack of familiarity with the US college and financial aid application processes within their families.

According to Common App, approximately one-third of their million-plus annual applicants are first-generation students. These students are more likely to create Common App accounts without submitting applications because they “often lack familial and school-based guidance on how to navigate the complex admission waters,” according to a recent article on BestColleges.com. It continues: “Just last year, about 700,000 seniors who opened Common App accounts never completed an application.”

Seeing this disparity in access to higher education, a group of IECA members set out to make a change. The result is the AXS Companion, a free online resource that aims to improve access and clarity for under-resourced students who lack college counseling support. Through detailed videos, the AXS Companion walks students through each step of Common App from beginning to end. Alternatively, students can watch an individual section’s videos to understand how to best respond to that section based on their circumstances.

View this video to see samples of the AXS Companion and to learn more about the project:

How the Project Came About

Several years ago, Maite Halley, an IECA member who has been a leader in the association in several capacities, envisioned this project as live workshops to support under-resourced communities. During COVID-19, Marilyn O’Toole, IECA member and liaison to Common App, asked Common App leadership if IECA members could pivot and develop step-by-step videos for the initiative instead.

With Common App’s approval, O’Toole then engaged Jon Boeckenstedt, vice provost at Oregon State University to discuss solutions to store and organize the video resources. This evolved into the collaborative framework of Oregon State University Ecampus building the platform, with IECA providing the content.

Left to right, clockwise: IECA members Jeffy Levy, Marilyn O'Toole, Pat Smith, Ibrahim Firat, Sylvia Jackman, Louise Franklin, and Jennie Kent.

Over the last eight months, many IECA members have worked tirelessly on this project, including: Ibrahim Firat, Louise Franklin, Carolyn Gelderman, Anne Holmdahl, Sylvia Jackman, Amy Jasper, Jennie Kent, Jeff Levy, Janae McCullough-Boyd, Marilyn O’Toole, Chantal Paiewonksy, Veena Rao, Pat Smith, and Juan Camilo Tamayo. These dedicated members produced the project content, which included writing and editing curriculum and scripts, as well as recording audio and video for 50+ modules for each section of Common App. Additionally, they called on experts in various fields to support their efforts, and created modules that provide financial aid guidance, essay suggestions, and admissions officers’ advice. The project creators chose the name The AXS Companion because of the double entendre: improving student access through the collaborative axis of higher education and IECA. The AXS Companion was introduced at the IECA 2022 Spring Conference in Philadelphia and is launching on September 1, 2022.

IECA is grateful to the members of the Oregon State University Ecampus who trained our colleagues to audio and visually record each section and then edited hours of their recordings, adding animation to make the directions and guidance clear. In addition, thank you to the engineers, graphic designers, animators, and project managers who have worked tirelessly to create this invaluable resource. 

Pictured above (left to right, clockwise): IECA members Jeffy Levy, Marilyn O’Toole, Pat Smith, Ibrahim Firat, Sylvia Jackman, Louise Franklin, and Jennie Kent.

College Admissions

A Legacy Obsolete

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The families I advise are generally aware of legacy admission practices, but many are less informed regarding its origins and the degree of advantage that it affords them.

As an independent educational consultant who works directly with students who benefit from this policy, I can also vouch for the pressure, and even embarrassment, this adds to an already stressful process. Not unlike the Varsity Blues scandal, students are the ones caught in the crosshairs of outside influences and expectations that can infringe on and even deter the process of finding that perfect-fit college.  

Although increasing college access and diversity is a growing priority for colleges, I have found legacy admissions to be the proverbial elephant in the room. The contradictory policy of legacy status still appears to be considered sacrosanct by many postsecondary institutions. College admissions is subjective, and the institutional priorities that define who is admitted each year often place emphasis on varying qualities that are not associated with academic merit: athletics, ability to pay, etc. However, the notion that an advantage is granted to applicants based on historical ties to the college is completely unjust when considering our country’s painful history of denying postsecondary access to students based on race, gender, and religion. Many colleges have a page on their websites dedicated to a commitment to diversity, equity, and inclusion, yet duplicitously maintain legacy status in the admissions process, giving a clear (non-merit-based) boost to more privileged populations. 

Dartmouth College is the notorious trailblazer of legacy admissions, first introducing the practice in 1922, with other colleges such as Yale following closely behind. The origins of using legacy in admissions are seeded in nativism and antisemitism, created to ensure that certain populations remained excluded. Selective colleges such as Harvard and Princeton have single digit admit rates for the general population, yet admit about a third of legacy status applicants. At Cornell University, legacy admits make up “around 15% of the student body,” almost five times that of the Black student population, or almost equal to that of the entire Black and Latino populations combined. Although colleges have confirmed that legacy admits are often academically qualified, competitive applicants, this practice has given additional privileges to an already affluent population, further compounding inequity in the admissions process and serving as a barrier to achieving higher rates of diversity at college campuses. Furthermore, those who promote the use of legacy admission say it guarantees loyal alumni giving; research shows there is no correlation.   

Amherst College is the most recent institution to end legacy admission preference, citing it as a policy “that inadvertently limits educational opportunity.” The College is also strengthening its financial aid programming in an effort to making an Amherst experience more affordable and accessible to all students. Amherst joins the ranks of colleges like MIT and the California Institute of Technology in creating a holistic approach to admission that does not factor in alumni connections.  

Although legacy status is just one aspect of a college admissions process already rife with advantages for the wealthy and privileged, eliminating it is one solid gesture that all colleges can take to “walk the walk” in their diversity, access, and inclusion efforts. I applaud Amherst College, and its predecessors, for having the courage to make bold changes to embrace a new legacy that embodies the visionary leadership our students and families deserve. Breaking with past practices is something we all must be willing to do to create meaningful change for the diverse populations of students that we are called to serve and advocate for as college access professionals. 

By Yvonne Espinoza, IECA (TX)

Yvonne Espinoza, Yvonne Espinoza College Counseling Services, can be reached at [email protected]

College Admissions

How to Navigate Vaccine and Mask Mandates with Your Students and Families

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More than 18 months into the pandemic, COVID-19 continues to impact the landscape of college admissions and how life on campuses looks these days. With mask and vaccine mandates varying across the country—as well as the responses to them from prospective students and their families—many IECA members are looking for suggestions about how to guide parents and students through this tumultuous time. IECA Secretary/Treasurer Ibrahim Firat (TX) offers this perspective and advice.

Stay Informed about a College’s Mandates and its Political Climate

Our office is staying informed about college mandates/requirements by reaching out to current and past students (who are in college now) to hear what they are experiencing; reading the Chronicle of Higher Education’s up-to-date information about colleges’ vaccine mandates and other requirements; and staying in touch with admissions office contacts.

We rely on current/past student feedback, online forums, student-published media (newspaper, radio, podcast etc.), events on campus, and faculty-led research/publications to keep our pulse on the political climate of the college.

Provide Context for Vaccine Mandates

Just as size, location, academics, etc. are factors to decide where to go to college, so are rules/regulations/mandates. Vaccine mandates are not new, however; certain vaccines (i.e. meningitis) have been required by colleges for some time, so we start by reminding that this has been around. Secondly, we remind parents that their college-bound student is (or by the time they go off to college will be) 18+/adult and that it really is their decision to further pursue discussions with the school about mandates. Thirdly, colleges have been providing religious and/or health-related exemptions to mandates and that they can look into these options if necessary/applicable.

Continue to Guide Students and Families According to Best-Fit

There is a fine line between making this issue political and scientific versus completely college admissions or fit related. We do not get into the politics or the science of it as we are NOT the experts in those areas. We do get into the factors of selecting the right-fit college for the individual student/family’s values, and if certain school’s mandates are against those values, then it is simply an X rather than a checkmark next to that factor and we treat it as such. For some people, that X means everything; for some people that X is just another factor that may not fit them (i.e. size of campus/class size) and it may be okay.

College life on campus is shifting from all angles (i.e. living, dining, political climate, frats/sororities, etc.). How can we support families who are trying to find the best-fit college in this dynamic environment? It is a challenge, given that we still cannot visit most universities in person to gather updated info and get a feel for these “vibes.” But we must use the resources available to us to find the college that best matches the student’s educational, social, professional, and personal growth.

Ibrahim Firat, Firat Educational Solutions, LLC, can be reached at [email protected]

Education Policy

Post-Election Update: What to Expect from the New Biden Administration

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By IECA’s Lobbyists/Government Relations Team of Brian Finch and Craig Saperstein, Pillsbury Law and Public Policy; and the IECA Government Relations Committee

With the November 2020 general election nearly concluded, the Biden-Harris transition team is beginning its initial tasks of identifying individuals for key agency positions, and setting the groundwork to implement the new Administration’s major policy initiatives. The Biden Transition Team has begun formal coordination with current agency officials, and now has access to direct government funding for the transition. Given President-elect Joe Biden’s campaign promises and stated policy goals, there may be substantive developments in the higher education space within the first few months of the Biden presidency of which independent educational consultants should be aware.

Top Biden Policy Goals

Whether by executive order or through legislation, President-elect Biden has already indicated that he hopes to address student debt within the first 100 days of his presidency. Although no specifics have been revealed by the Biden team, potential relief may include a specific amount of debt forgiveness for undergraduate loans (rumored to be ranging anywhere from $10,000 to $50,000, with income-based caps), an extension of the COVID-19 forbearance period, and reduced federal interest rates on future federal loans.

Another priority for the Biden Administration will be reauthorizing the Higher Education Act (HEA), which establishes federal student aid programs and governs most federal money going to colleges and universities in the United States. The HEA is designed to be reauthorized and updated every 5 years. However, the most recent update has not occurred since 2008. House Democrats introduced a bill, known as the College Affordability Act, to reauthorize the HEA in the current session of Congress, but action on HEA reauthorization is not likely to occur until the next session of Congress.

Beyond these initial objectives, the Biden team made education reform a key priority throughout the presidential campaign. Specific to higher education, the Biden campaign promised to invest in educational pathways programs in high schools, including investing in school vocational training programs, building partnerships between high schools, community colleges and employers to allow students programs to earn industry credentials while in high school. The Biden team has also promised to allow Pell grants to be used for dual enrollment programs, allowing high school students to take classes at community colleges for college credit.

Stakeholder groups have also been using this transition period to identify specific Trump Administration directives that the incoming Biden Administration should address. This week, the Association of Public and Land-grant Universities (APLU) and the American Council on Education (ACE) both sent their policy priorities and recommendations to the Biden transition team. Their recommendations include reversing Trump Administration limits on H-1B visas that have limited international student enrollment in colleges, ending the Trump executive order limiting diversity and critical race theory trainings, and ending certain “unnecessarily adversarial” investigations by Department of Education into admissions practices. While the Biden team has not responded to these requests, these two influential higher education lobbying organizations and may help shape the initial Biden Administration policy goals.

Department of Education

Recently, the Biden-Harris transition team named its Agency Review Team for the Department of Education. The Review Team is led by Linda Darling-Hammond of the Learning Policy Institute, who previously served in the same role in 2008 for the Obama-Biden transition. Other Review Team members include the head of the Institute for College Access and Success, the postsecondary education leader at the Center for American Progress, a senior administrator at Howard University, the policy director for the Alliance for Excellent Education and numerous stakeholders from the primary and secondary education worlds. These volunteers are responsible for reviewing and understanding the operations of the Department of Education, coordinating the transition of power, and preparing President-elect Biden, Vice President-elect Harris and incoming Administration leaders to implement key policy priorities.

As part of the COVID-19 relief measures, federal student loan payments had been suspended through the end of 2020. The Biden – Harris administration had signaled a desire to extend student loan relief in some way. Recently the Trump administration announced that student loan relief for 41 million Americans who have benefited from a freeze on monthly payments will now have this relief extended to January 31, 2021.

While President-elect Biden has started naming his picks for top Administration positions, he has not yet indicated his choice for Secretary of Education. While campaigning in 2019, Biden promised to pick a teacher for the position, but left it unclear whether this only meant a K-12 teacher, or whether he would also consider a post-secondary educator. Potential rumored candidates for the position include Randi Weingarten, the president of the American Federation of Teachers; Lily Eskelsen García, the former president of the National Education Association; Baltimore City Schools CEO Sonja Santelises; Chicago Public Schools CEO Janice Jackson; and Philadelphia superintendent William Hite.

Regardless of who is ultimately named as Secretary of Education, the largest priorities will remain the same: increasing federal funding for schools to address the COVID-19 impacts, restoring Obama Administration civil rights guidance in schools, rolling back many of the Trump Administration and Secretary DeVos positions and directives and restoring funding cut over the past 4 years.

Potential Washington Gridlock

Despite the many Biden team objectives and promises, the viability of many higher education reform proposals will largely depend on the outcome of the January 5th Senate runoff elections in Georgia. The results of these two races will determine political control of the Senate. Victories by the Democratic candidates, Reverend Raphael Warnock and Jon Ossoff, would give Democrats 50 seats in the Senate, along with the tiebreaking vote by Vice President Harris. If Republicans are able to win either seat, they will maintain control in the Senate. A divided Congress, with a Republican-controlled Senate and a Democratic-controlled House of Representatives, would be far less likely to enact any sweeping changes to federal higher education policies than if Democrats have unified control of Congress and the Presidency. While some of Biden’s policy objectives can be accomplished by executive order, and through Department of Education initiatives, control of the Senate will be critical to the success of the Biden Administration’s legislative goals.  Without such control, there is a distinct possibility that Senate Republican leader Mitch McConnell (R-KY) will not even permit a vote on legislation he or the majority of the Senate Republican Caucus opposes.  Democratic control of the Senate will permit the party to set the committee and floor agenda, though even having a majority is not a panacea; bipartisan support for higher education reform legislation will likely be necessary regardless of which party controls the Senate, given that Senate rules dictate that a 60-vote majority is needed to pass the vast majority of legislation.