January 22, 2021
Trump Administration Releases Last-Minute Guidance
A flurry of last-minute guidance issued during the final days of the Trump Administration may affect colleges and universities, including guidance related to accreditation for distance education, sexual orientation and gender identity discrimination, and the Clery Act.
Accreditation
The Department of Education issued long-awaited guidance extending the waiver of certain accreditation requirements for programs that went online due to the pandemic. The waiver, which temporarily allows colleges and universities to offer distance education programs without seeking approval from their accreditor, now extends through the end of the payment period that begins after the date on which the federally declared COVID-19 emergency is rescinded.
At the same time as it extended the waiver, the Department altered prior rules regarding the accreditation of distance education in a move that will have a significant impact on many institutions. Previously, colleges and universities were required to secure approval from an accrediting agency with distance learning within the scope of its approval prior to offering more than 50 percent of an educational program online or having more than 50 percent of its students enrolled in distance education.
The new guidance alters both of these 50 percent rules to now require that institutions must be approved for distance education by an accreditor with distance education within its scope before it can offer any portion of its program online. Institutions that exceed either of the 50 percent thresholds for distance education are required to seek accreditor approval via the substantive change process.
This major change will make the extension of the waiver related to the pandemic even more important because it will provide institutions that have not previously needed it time to get accreditation approval for distance education programs.
Title IX
Additionally, the Trump Administration updated its guidance setting forth its interpretation of Title IX in the wake of the Supreme Court’s decision in Bostock v. Clayton, which held that lesbian, gay, bisexual and transgender (LGBT) individuals are protected under a federal employment discrimination law.
Specifically, the guidance acknowledges that discrimination based on sex may sometimes cover discrimination on the basis of sexual orientation and gender identity, but the Department placed significant limits on this interpretation, particularly as it relates to transgender students’ participation in athletics and access to shared facilities such as restrooms. Nevertheless, the Trump Administration’s guidance is expected to be short-lived in light of President Biden’s Executive Order instructing federal agencies to ensure that LGBT individuals are protected from discrimination to the fullest extent of the law. [link to Biden Day 1 story]
Clery Act
Finally, the Department issued an updated version of its new Clery Act guidance. In October, the agency rescinded the 265-page Campus Safety Handbook that details how colleges and universities should comply with the statute and replaced it with a short guidance document that provides greater flexibility to institutions of higher education. The updated guidance appears to be substantially the same as the new version that appeared in October.
The new guidance documents issued by the Trump Administration will remain in effect unless modified or rescinded by the Biden Administration. As is commonplace at the beginning of a new administration, President Biden has issued a memorandum imposing a “regulatory freeze” on Trump Administration regulations and guidance documents that, unlike the measures described above, have not yet been published or taken effect.
The memorandum instructs federal agencies to postpone or withdraw such regulations or guidance until the agencies have the opportunity to review the documents and determine whether they should be finalized. The memorandum will have important implications for pending rules and guidance that affect colleges and universities but that were not implemented in time, such as the Department’s notice of interpretation regarding its authority to enforce the foreign gift reporting requirements under Section 117 of the Higher Education Act.
Accreditation
The Department of Education issued long-awaited guidance extending the waiver of certain accreditation requirements for programs that went online due to the pandemic. The waiver, which temporarily allows colleges and universities to offer distance education programs without seeking approval from their accreditor, now extends through the end of the payment period that begins after the date on which the federally declared COVID-19 emergency is rescinded.
At the same time as it extended the waiver, the Department altered prior rules regarding the accreditation of distance education in a move that will have a significant impact on many institutions. Previously, colleges and universities were required to secure approval from an accrediting agency with distance learning within the scope of its approval prior to offering more than 50 percent of an educational program online or having more than 50 percent of its students enrolled in distance education.
The new guidance alters both of these 50 percent rules to now require that institutions must be approved for distance education by an accreditor with distance education within its scope before it can offer any portion of its program online. Institutions that exceed either of the 50 percent thresholds for distance education are required to seek accreditor approval via the substantive change process.
This major change will make the extension of the waiver related to the pandemic even more important because it will provide institutions that have not previously needed it time to get accreditation approval for distance education programs.
Title IX
Additionally, the Trump Administration updated its guidance setting forth its interpretation of Title IX in the wake of the Supreme Court’s decision in Bostock v. Clayton, which held that lesbian, gay, bisexual and transgender (LGBT) individuals are protected under a federal employment discrimination law.
Specifically, the guidance acknowledges that discrimination based on sex may sometimes cover discrimination on the basis of sexual orientation and gender identity, but the Department placed significant limits on this interpretation, particularly as it relates to transgender students’ participation in athletics and access to shared facilities such as restrooms. Nevertheless, the Trump Administration’s guidance is expected to be short-lived in light of President Biden’s Executive Order instructing federal agencies to ensure that LGBT individuals are protected from discrimination to the fullest extent of the law. [link to Biden Day 1 story]
Clery Act
Finally, the Department issued an updated version of its new Clery Act guidance. In October, the agency rescinded the 265-page Campus Safety Handbook that details how colleges and universities should comply with the statute and replaced it with a short guidance document that provides greater flexibility to institutions of higher education. The updated guidance appears to be substantially the same as the new version that appeared in October.
The new guidance documents issued by the Trump Administration will remain in effect unless modified or rescinded by the Biden Administration. As is commonplace at the beginning of a new administration, President Biden has issued a memorandum imposing a “regulatory freeze” on Trump Administration regulations and guidance documents that, unlike the measures described above, have not yet been published or taken effect.
The memorandum instructs federal agencies to postpone or withdraw such regulations or guidance until the agencies have the opportunity to review the documents and determine whether they should be finalized. The memorandum will have important implications for pending rules and guidance that affect colleges and universities but that were not implemented in time, such as the Department’s notice of interpretation regarding its authority to enforce the foreign gift reporting requirements under Section 117 of the Higher Education Act.
For more information, please contact:
Jody Feder