Faith-Based Entities Subcommittee – January 18, 2019, Afternoon session

you you you you you you you you you you you you you you you you you you you you you you you you you you we so all right welcome back thank you all
very much I know these have been long days and I really appreciate everybody
to continue the engagement I wanted to follow up on a couple things you asked
me about one was there was a question about whether private schools private
secondary schools were funded through trio I checked they are eligible to
participate in trio programs the same way they are in gear up they may not be
as competitive in that program it’s the program structured differently so I
don’t think we’ve had too many of them and I don’t know I don’t have a number
how many are currently in the program but they are eligible the same way
they’re eligible and game gear up gear up staff is looking into the other gear
up question you asked about how we interpret the independent provision
contracting individual teachers versus contracting the school and I’m hoping
that we can get an answer to that while we’re here
Ashleigh we’ll keep an eye on the email if not I can send you an answer between
the sessions you had also asked about the definition of pervasively sectarian
there that has not been defined so there’s there’s no definition in statute
and I also spoke with anne-marie and also with the people heading up the
committee that’s looking at distance IDI and indicated that I thought it made
sense and you had expressed an interest in looking at 600 point 9 and 11 they
both agreed that your expertise is very needed in that and I don’t see any
problem so we should definitely look at those such questions when we come back
next time so alright any procedural questions all right we’re ready to dig
back in so we have one more gear up provision left and that is gear up grant
Europe partnership grants have fiscal agents that have to be either le A’s or
institutions of higher education the current language says Institute
institutions of higher education that is not pervasively sectarian and I’m sorry
I said that wrong institutions singular an institution of higher education that
is not pervasively sectarian we believe that the clause that is not pervasively
sectarian violates the Free Exercise Clause because it’s relating to the
status of the institution and not the use of the funds so we’re proposing to
delete that clause can you provide the specific legal authority on which you’re
basing that conclusion please what what case line what what interpretations
you’re looking at I have been conferring with our general counsel’s office and
that’s their bottom line but I don’t have the case law I mean I’m not with
the general counsel’s office the the the the puzzle here is so your
so the department’s position is that this is a free exercised problem the the
the distinction in the term come from Supreme Court precedent that remains
valid precedent and it gets to not the not the identity of the institution
which again is the as the department has described so much of the so much of what
it’s doing here has has purported to describe as being about Trinity Lutheran
the idea of a pervasively sectarian institution gets to a particular a
particular puzzle which is this if the government can be in the position of
funding secular services at or through religious entities the provision of
secular services that’s not a problem but but the idea from the Supreme Court
precedent of a pervasively sectarian institution is that everything is so so
infused with religion in every aspect that without without violating the
institutional mission the institution can’t treat something as secular can’t
perform something in a secular way it’s about how the Institute effectively how
the institutions define their own religious mission and that gets to the
problem that that I think the regulation was trying to deal with where the
government is limited to to providing secular services and if they would be
proven if it would try to do that an environment where you can’t have secular
services because the institution doesn’t believe that there’s any way to do that
that that that that that’s the problem and that’s not a free exercise problem
because it respects the fact that the religious institution gets to have every
aspect of its work thoroughly pervaded that’s the term right with religion and
gets to do it in that way it just means that that in that narrow class of
circumstances that’s a situation where the government
in that environment provide the services it has to do it someplace else
so as not to so as not to interfere with the religious mission of the entity
that’s what it’s getting at and that doesn’t strike me as as a problem it
strikes me as as a good thing for respecting the institutions and also
what remains constitutionally required so the department’s legal authority
would be a Supreme Court case 19 years ago Mitchell versus Helms and I’m sure
that is what they were looking at where the plurality opinion it completely
disclaimer use of pervasively sectarian for reasons I’ll going to in a second
and then the the concurring opinion of of O’Connor and Breyer did not use that
test either so it’s been basically understood that Mitchell V Holmes has
has buried the pervasively sectarian use of the term term that was used a lot in
the 70s and 80s but the problems with it are that it violates both the free
exercise and the Establishment clauses it’s actually so pervasively sectarian
for it to work it means that government officials have to be deciding how
religious an institution is and it’s okay to be sort of religious but not too
religious and that’s exactly the kind of decision that the government’s not to be
making or distinction that it’s not to be making and so the best articulation
beyond Mitchell V Helms of the of why this is an Establishment Clause problem
is a decision by at the time Judge Michael McConnell who’s probably the
leading scholar in the church state area when he was on the Tenth Circuit in the
cases Colorado Christian University versus Weaver and he spent several pages
explaining my pervasively sectarian is no longer the Supreme Court’s test
because of course he was bound to follow Supreme Court precedent but he goes into
it in quite a bit of detail and and the the two takeaways are that the
Establishment Clause is violated by making this distinction and if that
actually becomes discrimination among religions which is an absolute command
of the Establishment Clause that that’s not to be
by the government and that triggers strict scrutiny in and and then also the
other problem is that the government then has to troll through what who
believes what and how much they believe it and so those are actually two
separate violations of the Establishment Clause and then it becomes a free
exercise problem too because of course as we saw in the 80s and 90s and I think
a lot of the people who are at Krishna schools you you saw religious schools
being counseled by their attorneys to look less religious
you know couch your your mission in secular terms and don’t look so
religious if you want to participate in government programs and and so that in
itself is a chilling effect on for the exercise of religion because these
institutions should be allowed to be openly religious and be very honest
about what their religious beliefs and information are so those though that’s
where I’m I would be that’s why this is a very good deletion in order to bring
this regulation into compliance with current Supreme Court law so a couple of things that came I know
you won’t be surprised that I’ll saying you won’t be surprised about as the law
either is look the Tenth Circuit US Court of Appeals for the Tenth Circuit
or a panel of the Tenth Circuit cannot overrule decisions of the US Supreme
Court judge McConnell’s opinion whatever it may be doesn’t change Supreme Court
authority it can’t the the plurality in Mitchell is not the controlling decision
the concurrence is it’s under the marks rule the narrowest decision that on
which on which if the the decision can be the decision was promised is the one
that’s controlling that is the concurrence so none of that attempt to
say that the to say that the doctrine is no longer good law can be squared with
clear Supreme Court precedent not only the president on the doctrine itself but
the president on how to read and interpret and apply Supreme Court
doctrine so so that really has to be set aside now to get to the to get to the
substance of it I’m gonna go back to what I said before which is when the
question is when the governmental requirement is as driven by and required
by the Establishment Clause that the government can’t be in the business of
providing providing religious instruction religious services then the
question is can it provide these services in a way that is is secular and
complying with the law and what this regulation gets to is though is the
narrow set of instances in which because the institution defines itself in a
particular way and organizes itself in a particular way that just can’t happen
that’s what it’s getting to that remains that remains the controlling law and I
really worried again about striking striking legal requirements that have
been in place for a long time and that remain the law and what message that
sends about the department being uninterested in or unwilling to enforce
the law which I don’t think it is and certainly shouldn’t be the department’s
in so I start to feel like I’m literally
between two legal opinions here but the the issue for for me immediately and
then I have more distal kind of concern is I did I hear you say that it’s the
interpretation of the counsel for the Department of Education that this is
potentially inconsistent with the current attorney general guidance so is
it is it the ed department counsels opinion that this is concerning phrase I don’t know that I can say that that’s
typically our counsel’s office did have concerns about this yeah it concerns
about opinion or about it being deleted okay so that’s not quite a clear read
when I’ve been on professional or state bodies before we’ve often had someone
from an attorney general’s office or general counsel say here’s my take of
that and we could then decide to run at risk of the legal advice we were given
but usually we conform with it so I have two competing opinions from a legal
standpoint and it sounds like Kim’s opinion is citing more with the
impression you’re getting from the counsel’s office but we don’t know that so our general counsel’s office does
have concerns about this with respect to free exercise and Establishment Clause
you had asked whether it was tied to the Attorney General memo okay find their
rationale right I don’t know I don’t know whatever they’re they do have
concerns to your they do they do her yes okay so conceptually I don’t like the
phrase because I don’t know how you do like is it 41% religious forty-one
percent of the areas where they’re involved or religious is not yet
pervasive 51 percent is and how anyone would decide that it’s just it doesn’t
fit the realities of religion as I understand it or a study that as
colleges of religion and so there’s a area of research for instance called
sanctification research and it’s applied to lots of different fields but that
body of research suggests that people can sanctifying all kinds of mundane
things and when they sanctify that is in their mind view it as a sacred
opportunity or activity even if it’s engaged in what we might think of as a
secular role it alters the psychosocial consequences of behavior so that line of
research now is 20 years old it’s well established and it’s looked at lots of
different areas of life but it does have powerful predictive value in terms of
empirical correlates so I would have to know the subjective state of the people
engaged in the activities to know whether or not it was religious in
motivation or intent and I don’t know how the government would ever do that
kind of assessment as a as a psychologist of religion that’s
concerning to me and so it makes sense the interpretation Kim’s given given
that constraint but on the legal matter I would have to defer so this feels like it follows on the
conversation earlier where we were discussing a scenario in which religious
individuals religious agencies religious schools can in fact provide secular
educational services so that seems to be a line that we can in fact identify and
the way the reason that that relates to this conversation at the moment is that
that word pervasively seems quite operative it seems to point to a
scenario in which there is a religious organization that would be running afoul
of its own mission or it to provide secular educational services or benefits
so in terms of the question of like how do we measure can we measure it seems
that the implied there’s an implied reality that we actually do have the
skills to do that and therefore it does seem applicable to say that we are
concerned about an illegitimate us so I wanted to obviously provide a
practitioners perspective on this and to provide a little bit of additional
context in background knowledge so as long as this bin has been a regulation
there are no known examples of institutions seeking to apply to be part
of a grant participate in a program and that this is ever there’s never been
there’s never been a concern here so this is a solution in search of a
problem there where there is no known problem it’s it’s important to
distinguish that the way the gear-up partnership programs work is that any
institution of higher education can participate any there is no restriction
the restriction has to do with whether or not that entity can serve as a fiscal
as a fiscal agent and so because there are no examples of it we’re sort of worn
out I have to sort of hypothesize about what the what the consequences of that
of that would be so as the fiscal agent for a discretionary grant that entity
has the ability to determine which partners are hired which contractors are
selected and the scope of services that are provided because even though we have
we can all of we may not we may agree that we don’t know what a definition of
a pervasively sectarian institution of higher education is a couple of things
one is that if a pervasively sectarian institution of higher education were to
become a fiscal agent and have the powers and authorities that are
associated with that there would be a an opportunity in which there would be a conflict in which these
institutions have in terms of their rights to select or discriminate based
on employment that may not be transferable to the to the requirement
around services and benefits that are that are being provided through Europe
there is a concern that requirements that such institutions place on students
to participate in that institution could be potentially applied to students that
particularly that participate in the program and it’s it’s there’s a there is
a potential that those practices could be both in violation of the free
exercise clause of those students those students that want to participate in
these services and who are eligible to participate in these services but
however are being forced to make a choice between receiving these services
and subscribing to a particular ideology that that is our concern I think that
there is also a concern of of a chilling effect in the opposite direction that
whereby a family or students who know that they’re eligible if they know that
the program is being run by a pervasively sectarian institution of
higher education as opposed to a local school district that there could be a
chilling effect in terms of well if I choose to enroll my son or daughter in
this program am I being forced to participate in activities that aren’t
consistent with my own beliefs am i forced to ask my child to engage in an
ideology that that I don’t agree with none of that whatsoever has anything to
do with what the intent of gear-up college and career-readiness is a
technical service and I don’t know why this was put in but I do know that that
the concern of the chain exposes the department and exposes the
gear-up community to having to respond to circumstances that a we don’t have to
respond to right now and B we don’t have any indication that it that it is a is a
is a concern and so I think that there is well i can’t necessarily speak to
some of the legal conversations that have been going on here I can say that
this hasn’t been an issue up until now and that there there could easily be
concerns that that permeate as a result of this let me repeat institutions of
higher education that are pervasive Saturn arm can it can participate
it’s just that having the role as the fiscal agent changes the the engagement
and the discourse as Haven has mentioned pervasively and what does it mean I’m sure a meaning
would be prevalent the prevalent pervasively is more than 51% I am sure
that there are cases on this world and I think the language should stay in
because there is a meaning to the word pervasively historically in the case law
going back years in the Establishment Clause pervasively sectarian was code
word for Catholic I mean that was that was the evil that was trying to be
remedied was financial aid from the government going to support a Catholic
school and to me this this really seems like exactly the Trinity Lutheran
situation where you do have a federal program that’s being denied to an
institution based on the fact that they are pervasively sectarian just my
opinion but any Christian University it should probably be their goal to be
pervasively sectarian now for terms of this I would argue of course we’re not
pervasively sectarian if we wanted to to apply for a gear up grant but if you
walk around our campus I hope what you see is Scripture is pervasive we are a
very sectarian Christian University when I say
sectarian I’m talking about Christianity in a broad sense that’s what we’re
hoping to do and for us to not be able to participate in a federal program
simply because of that it does run foul a foul of the Establishment Clause so as
I understand it the there is nothing about this that speaks at all to
universities being able to have gear up students or gear up students being able
to go to particular universities this is about who the government contracts with
to to administer the program administer the the money and so it doesn’t it
doesn’t affect I think the problem that you talk about it all because students
can make that choice to go to your University or any other the Supreme
Court has defined Tom raised that this is a you know this is a legal term there
must be a definition in fact the Supreme Court is said the requirement is that no
state aid at all can go to institutions that are so pervasively sectarian and
here’s where it comes that secular activities cannot be separated from
sectarian ones and that if and that if secular activities can be separated out
they may alone be funded in other words in other words it’s a legal definition
that means very specifically the institution that might be seeking to be
to be the the gear up grantee to run one of these programs can say we can offer
some that we can we can draw a line and do some things that are secular and
those things can be government-funded even if we’re also doing some other
things that are religious we can we can draw a line and say we are capable of
providing a secular service on the government’s dime to these students as
long as they can do that then they’re eligible to be this to to to to be this
agency to run the programs and give the money and again none of that affects the
the either which students are eligible or where they can go to
school I think a point made earlier in the day stands to be useful here as well
about keeping first things first that this is about a benefit and service
provided to students not to institutions and so to me seeing this in that context
line B reads with a sort of parenthetical implication at the end an
institution of higher education that is so pervasively sectarian that it is
unable to provide secular benefits and services I’m not suggesting right now
that that is the language we go to I’m not don’t throw up an option up there
but to me that is the spirit of what we’re getting at here and I think to
remember that this is about student benefits not institutional benefits is a
continuing concern so again I still I don’t know what a
secular gooder services apart from a religious one that makes no sense to me
from lots of different faith traditions so I worked at UMass Medical Center with
John kabat-zinn who launched the mindfulness movement that you know Time
magazine has on supermarket checkouts every month I have another friend who’s
a Buddhist psychologist in Beijing there’s quite unhappy about that
movement because he thinks it is it is pop Buddhism and it’s just indescribable
ism mindfulness is everywhere in public programs and Jon kabat-zinn himself of
course Buddhists and has started a Buddhist meditation center Cambridge and
from that point of view those things are intertwined within their perspective
yoga we could go on and on where things are American into association sees yoga
is inherently and essentially Hindu but how many of our public schools have yoga
programs and so we can go on and on with examples like this what I’m saying is
religions conceptualize things differently I have frequently seen
people in my field so when I worked in the military as a psychologist the work
we did would rarely be identified by someone just looking at it as explicitly
religious but we certainly thought of what we were doing as a religious act
and to make these distinctions it starts to break down when you’re talking about
yogic practices or mindfulness techniques specifically the goal is of
dissolution itself somehow informed by a Buddhist perspective this this becomes
part and parcel that I see everywhere all around the world and if it just
means you have to use code words or hidden language and then it’s okay I
don’t know why a whatever pervasively well let me say this differently let’s
say you have a place that you all agree somehow isn’t pervasively religious but
in the 1 percent of the religious they are they hand out evangelistic tracts to
people so you come you get completely normal services but at the end they give
you a tract wouldn’t that be problematic in the kind of abuses you’re talking
about more so in a place that is always thinking of what they’re doing is
religious but the activity they’re providing
is a good in and of itself regardless of what else is present that we want valued
and you wanna cheat the establishment issue this is a feels like a much bigger
conversation I I personally as a person of faith as someone who works at a
faith-based institution don’t want to see the government building competitor
religion institution itself worship down the street so these folks are my friends
we researched together right dissertation committees for each other
students but we’re not in the business of building each other’s houses of
worship and that kind of thing seems really clear to me but when we’re
talking about a public benefit or allowing the government to distinguish
what a secular what is it it literally feels like I’m in an alternate reality
from what I perceived from religious individuals it’s not how they think
about these things unless they have compartmentalized lives if that’s what
we mean that’s one style of religiousness but it’s not specific to
any religion and it’s certainly not ubiquitous I’m just gonna ask a practical question
in in this partnership Andrew the would the institution of higher education with
the OMB commingling guidelines applied to to
that institution it when we talked about the OMB guidelines earlier I mean was
that directed at these fiscal agents yes the fiscal agents for all of our grants
are required to follow the OMB circulars which address a lot of things in
addition to the commingling of funds and I actually was wanting to bring up that
somebody had mentioned something about hiring decisions there’s guidelines
around those kinds of things as well so the fiscal agent regardless
of what type of entity they are need to follow the federal government’s rules
which are outlined in that OMB circulars my follow up theme is if those oh my god
lines apply and the money has to be segregated from other dollars anyway
what does it matter if it’s a pervasively sectarian institution if it
has to keep that money separate and use it only for those gear up activities
anyway two things I want to respond and then I want to ask a question so the
gear up program through both the statute and regulation and the the notice of
funding availability speaks precisely about what types of activities are
eligible I it’s I think it’s important for us not to blur what public schools
may or may not be doing to engage students versus what was happening in
Europe there are no yoga programs there are no mindfulness programs within
Europe that’s not to say that those things aren’t happening in public
schools and I think that that’s a that’s a valid point but if if yet during the
break I went down the hall and asked my program officer can I use gear
money for yoga I I would I know what the answer is because it’s not you know and
she would say to me how is that advancing the academic enrichment career
education and post-secondary success of your students and I would say it’s
probably not so that’s why I would not want to to to do that so I think that
you know there are and I agree with what what Haven said earlier that that the
the the services and benefits up above which you know the guardrails of the
federal funding need need for them to be secular that if it it it it may be
putting an undue unreasonable expectation on a pervasively sectarian
Institute of higher education to both adhere to its mission and the
requirements that it puts on its staff and be able to offer those services at
the same time it just might be too difficult to disentangle those those
those two and so that is the probably the rationale for for why why that is in
there so the question about determining what secular versus religious in
instruction is something that we deal with all the time in the law and in
practice and it’s it’s really really well settled that pub that public
schools can’t engage in religious instruction they have to have secular
instruction and we know what that is and the fact that you know I as a teacher in
a public school might be teaching in a public school because I as a matter of
as a matter of faith believe that it’s important to teach doesn’t render my
class the classroom instruction that I provide religious this this this
distinction that we deal with all the time and saying there’s what public
institutions public education public schools can do and here’s what they
can’t do with respect to religion is about what that instruction
actually looks like and we’re talking about the same thing here as I
understand the program and I think the answer is for what this clause means if
you can if you can provide these services in a way that is that is
secular whatever your motivation for doing that then you don’t have a problem
under the sketch to the Reg and if you can’t do that if you if you understand
that it’s not just that we’re doing this as a matter of our religious mission but
that the way we actually are going to counsel these kids is to is to is to
proselytize further the religious mission in the in that concrete way the
same as what if a public school is teaching X that’s that’s where it causes
a problem and to be able to say if you can’t draw that line then you shouldn’t
be a government agent for for running this program that’s not that’s that’s
nothing like discrimination I mean to start out with there’s no right to be
there is no right to be a an agent for the government what there is is a right
not to be discriminated against on impermissible grounds and being selected
and saying I can’t run the program that is required of me is a valid and
appropriate reason to say I can’t I can’t be the I can’t be the fiscal agent
for the government I think that’s what it’s getting at I was just gonna say
that the distinction that Richards making about the fact that the
government within its own schools can decide what to teach and not teach and
what it’s ate its employees can and can’t say is very different than looking
at what a Christian college or another religious college is doing and and this
was the point of justice Powell I think it was an eek versus Pittenger even back
in the heyday of pervasively sectarian that it’s a very different issue when
the government is the term we use is trolling through its own practices that
doesn’t raise Establishment Clause or Free Exercise
our problems but when the government is trolling through religious institutions
practices and and behavior than that is very much an Establishment Clause
problem and that’s that’s always been a distinction that the law has drawn even
when pervasively sectarian was an accepted concept which it no longer is oh so the the distinction that you drew
I think speaks directly but in a different way to this program because
when the government is is hiring and contracting with an agent to provide a
government program a government service that’s the same as when the government
is doing it internally when it’s when it’s the public school deciding that
instead of running the public running running having gear up done through the
Program Officer here making all the decisions about who gets a grant instead
to turn around and hire and contract with a Druze organization to do that
this is the same as is done across the board in under all the faith-based
regulations is is when you want to be a government when you want to be a
government contractor providing a government service on the government’s
dime you have to do it in ways that comply with the government regulations
and one of those things is that because the government itself can’t be providing
religious instruction it can’t be it can’t be hiring somebody else to do that
either again that’s what this is getting to and
to say that the government isn’t supposed to troll around in what your
university does is is is right is absolutely right but if your university
says we want to be in the position where we’re going to be not acting as the
university but acting as an agent for the Department of Education in running a
government program that’s completely different and it’s recognized across the
board which in statutes and regulations and everything else as well as in the
case law is different I mean focusing in on what this section
is specifically it’s it’s not about the services it’s about managing the money
and what this says I mean if you flip it around what it says is this particular
type of religious institution we don’t trust to manage the money even under the
OMB regulations so I I don’t see I don’t see any way that leaving that language
in avoids an Establishment Clause issue yeah I just wanted to echo that this is
referring to Richards comment which is that the more we talk about we’re
disqualifying someone from being an agent of the government in this
particular matter based on their status as a pervasively sectarian institution
the more we come back to Stephens earlier point that this looks very much
like the type of discrimination that violated the Free Exercise Clause in
Trinity Christian Luther Lutheran and I also I haven’t mentioned before but
there’s a series of regulations and I think the Department of Education has
them as well but I haven’t looked which I should have before this meeting but
they’re called the equal treatment of faith-based groups and they are
regulations that came out under the Bush to administration but then the Obama
administration and the Trump administration just recently reaffirmed
the the bulk of those regulations and and basically the it’s how can the
government interact with faith-based groups in providing social services the
government wants to basically pay through pay for through grants and it’s
those regulations don’t use pervasively sectarian they don’t try to make these
kinds of distinctions at all and and they very much if you want to think of
them as as turning faith-based groups into agents which i think isn’t the
right way to think about it but they’re very accepting of the idea that
pervasively sectarian religious groups can provide all of these social services
and there’s very few restrictions on what they can do two things one in response to Stephen I
don’t necessarily subscribe to the notion that this is about whether or not
the department trusts and in pervasively sectarian institute of higher education
to manage the money it’s a question of the autonomy and management oversight
that beyond just the transactional the the management oversight of being the
fiscal agent and the ability to set the course of the direction so as Lynn will
well know the department can only speak to the entity that is the fiscal agent
so if you’re not the fiscal agent you can’t you know there’s that there there
are lots of there are lots of provisions that that that come along with with that
so it’s I’m not sure that it’s just limited to that the other thing that I
think is important to put on the table here is unlike a lot of the other things
that we’ve been talking about about Perkins loans and work study the the
gear up program is a highly competitive discretionary grant in which most
applications are not accepted as a result there are numerous instances
there’s only one gear up grant in the entire state of Rhode Island now called
the entire state basis but but you know but there are other states that are
larger than Rhode Island in which due to the competition there is only one gear
up grant in that state whether it’s a state grant or it’s a it’s a partnership
grant there are states where there isn’t there are no gear up resources and I
think that that I would be concerned again about the chilling effect in the
opposite direction of if there was only one gear up program this isn’t a
question of whether or not everybody has access if there was only one gear up
program in a particular geographic area in which the fiscal agent was a
pervasively sectarian institution of higher education I have concerns about
both the chilling effect on students who are eligible to receive these services
and so it’s it’s different than hey everybody’s getting access to Parkins
money or everyone’s getting act to work study there’s not a universal
component to this there is a geographic in a limited component which which
requires us to look at this through a different lens I want to jump in for a
second and just make sure people are clear about the structure of the
garrotte program they’ve heard it referred to as contractors and I just
want to make sure everybody understands that this is not a situation where the
grantees are contractors of the Department of Education and they’re not
acting as the Department of Education agents this as Andrew mentioned it’s a
very competitive grant program where people apply to get grant money then
they are responsible for administering the grant the fiscal agent is actually
designated not to be an agent of the Department of Education but to be the
entity that is responsible for making sure that the grant complies with all
sorts of different requirements both of the program of the OMB circulars so I
just want to be clear that these are not people who are acting as as our agent um that’s helpful thank you and I and I
was probably I’m sure I was one who used who used a term meaning something with
non-technical again it’s this though on its face and as it’s actually practiced
and everything else seems manifestly to be about making sure that the service
that’s provided as the fiscal agent is a secular service and that this service is
in the program that are provided are secular services which the government is
required to do and so the question about the institution that’s not it’s not
about it’s not about identity it’s about whether the institution is able to
perform a secular service to do what the government is is giving this grant to
have done and again that’s what we do all the time and and it’s right that
that faith-based entities do lots of things under government grants as under
government contractors and everything else the question is always are they
able to deliver that service in a secular way and what this terminology is
about is can you separate out can you do can can you delete can you do the thing
that the government is giving you the grant to do so that you’re delivering
that service as a secular service and if you can great you’re eligible you can be
considered you may or may not get because there’s only one in the state of
Rhode Island you may or may not be the one who gets it on other neutral secular
criteria but if you can’t do that then what it what it’s really saying is
you’re not you’re not able to deliver the service that the government is
looking for that’s not about who you are that’s about being able to fulfill the
the needs of the program I think the issue for me is I who gets
to make that determination of who is pervasively sectarian and if the
government is the one doing that that’s that’s a problem under the Establishment
Clause they can’t pick and choose which religious entities are their favorite yeah they’re similar thought so I
actually like your focus although I still feel uncomfortable with the
secular not secular distinction but that’s a different subject different
debate but it seems like to me that’s where the focus should be and if we
strike this from here these other things that would still regulate the activities
seem to apply so I’m thinking of something like The Dream Center in Los
Angeles which is clearly I think in any common
sense way of talking all pervasive leaguer that is pervasively religious
they own a large educational network of online schools now that control the arc
Argosy stand no the the head of psychology the president of that system
certainly has a very different perspective than the Dream Center but
they fund them they’ve I’ve talked to him he wasn’t nervous at first but they
operate unmolested by this organization and so they and they don’t have any
intention of interfering with the way they approach GLBTQ issues or anything
else so so it’s a very different kind of emphasis according to the people that
were there they were concerned about it at first because of the explicitly I
guess I’ll use that language you know I don’t like it pervasively religious
natures on the dream centers but so far it has not been that part of it hasn’t
been an issue at all and so it seems to me what they do in managing the money is
without they would operate consistent with the guidelines of the relevant
government interests not how we would think about
them and some religious taxonomy it would seem to me that the government
is not measuring a colloquial understanding of pervasively sectarian
are you a highly religious institution but rather whether you can or cannot
deliver secular services and so I don’t think that there’s that sort of
meddlesome trolling through that we’ve been talking about going on it’s about
assessing whether you can do the actual job and so if a high B religious
organization can in fact deliver secular services under this specifically Freight
‘add terminology that school would not qualify as pervasively sectarian even
though colloquially they might feel like they are and hope that they are maybe
this we can advance this by perhaps a scenario so I’m going to ask Stephen I
don’t know whether you just would describe Oklahoma Christian University
has a pervasively sectarian institution some of the things that you have said
indicate that that may be the case so if if you will permit me to assume that
that that your university would fall into this category yeah and I would say
we’re pervasively Christian okay so if you’re okay I’ll proceed with with
with my example so if this were to be struck and Oklahoma Christian were
allowed to be the the gear-up lead entity and there is the language with
regard to six 94.5 regarding the fact that benefits and services need to be
secular neutral and non-ideological when you go to your university president and
say great news boss we’ve got a gear up grant that sounds great
how much money is it okay what do we need to do well we need to provide these
service but a little block and and these are the provisions what sort of roadblocks does that create
internally for your institution how do you respond to the question from
from your president that says well it’s my understanding that there are certain
restrictions around discriminatory practices and hiring that that accompany
this money how are we going to reconcile all of those things is this is this is
this is this really are we setting ourselves up for more challenges than
then we want I mean that’s that’s sort of the open-ended question I think would
be useful to sort of talk it out because we really don’t have any examples of
this actually happening in the past I thought it would be useful for the
conversation that that would be the issue we would have to wrestle with is
if the Department of Ed believes that the regulation as written is consistent
with the law and and we were identified as pervasively Christian and not
therefore able to to do this we we wouldn’t take that on my position would
be the secular neutral ideological language is still just as
unconstitutional as the pervasively sectarian so I I don’t I don’t think it
fits to say what would we do in that situation
I do think I mean because we are get as I would say pervasively Christian and
that means something to the way we operate I we would try and do that with
integrity and keep the money separate like we’re supposed to and use it only
for college access situations for students from traditionally
disadvantaged areas so I would hope we would do it well sure no I appreciate
that but what I what I want to make sure I understood is that from your
perspective it would be difficult to implement six 94.5 as it is current as a
regulation current least it states that you sort of see it as
it’s you you can’t separate those those two is that is that a correct
characterization no I’m just I’m just saying that language is equally
offensive to the Constitution as pervasively sectarian is a question for
the department there is a oversight and monitoring responsibility of the
department that’s associated with this what concerns would there may be not
this is the right question but you know what I’ll withdraw I liked havens thought that what we have
here is a term of art where we don’t all have the same mental definition of
what’s going on I think that may enter into it I was trying to think through
what Andrew had described for the fiscal agent and who would be what would be the
kind of institution we would not wish to have that role and I I throw this out as
a postulate to see if it’s it’s close one is that we would not want as a
fiscal agent a higher education institution that offered nothing but
religious instruction and had no secular and by religious instruction I mean for
example somebody training for the priesthood and had no secular I’m
postulating when the second one just understand it would be an institution
that was so sure sure so so I think it’s important I
think it’s important to remind everyone that the gear up services are provided
to students and from 6 to 12th grade and that they are not provided so when you
talk about those examples there are you know with the exception of that first
year and those those are transition to college services there are it’s it’s
there’s a there’s a there’s a very clear delineation between the serve gear up
has no place on college campuses from from a services perspective so it’s it’s
separate so it’s it’s it’s not necessarily what the institution may
choose to do for its students it’s the role that that institution may play in
operating and this is where you know it’s sort of stuck in title 4 as opposed
to title 1 we’re sort of in this sort of this this sort of oddity that that’s
where it sort of is I guess my question would be you know if if the if the group
said let’s you know let’s let’s let’s go with this recommendation of striking out
the language that that is not pervasively sectarian but from my
perspective the next step would be of we need to add additional regulation to
assure that institutions of higher education are taking the appropriate
steps to make sure that discriminatory practices are not put in place relative
to the letter and spirit of the gear up of the gear up program and so it’s not
and from my perspective it’s not enough just to take it out if we’re going to
take it out then then we would have to talk about how what steps are going to
be taken what steps need to be codified through a regulatory process to ensure
that gear up students are not injected with those types of those types of those
types of practices again that’s different than students that are on your
campus these are students that are in for the 97% of them are in public
education settings as again a very small percentage of them are on private so it
that’s would be if we wanted to move in that direction okay the next thing would
be okay let’s get Ashley working on okay how are we making sure that those
discriminatory practices are or employment choices that in that that
institutions have with regard to their own hiring are are not don’t have a
spillover effect with regard to to to to gear up students that receive gear up
services but are those other constraints around
hiring other sorts of things you’re concerned about already in the
regulations garret programs have to follow those already or in the guidance
document sir I apologize without adding these to the
regulations even if it seems redundant without adding those i concerned about
the monitoring burden that would be placed on the department in in managing
this this this particular grant I would follow up there are a number of
different provisions that the care of grantees need to follow starting with
the statute and regulations that relate specifically to that program also the
OMB circulars and other things Edgar that relates that all of our grant
programs I’m one of the things in gear up is that it lists the specific
allowable uses of funds and they’re not allowed to use money for things that are
unallowable activities I think that some of the things that people are concerned
about would be unallowable activities there’s also and OMB circulars quite a
bit of specificity about how funds are used and accounted for and there’s
things about hiring in there so yes I think many of the the concerns are
addressed elsewhere so earlier we talked about not a six nine four point five and
I despite my reservations about that language I saw that it could convey an
unattended message if we just deleted it without qualification or explanation and
I agree with that this doesn’t seem like the same thing to me to say that you’re
eligible even I don’t have know of a faith program or entity that would
naturally think of itself with the pervasively religious light label but
let’s suppose someone did and said oh good we’re in now we can apply to think
just because of that it automatically means they’re exempted from all these
other requirements that are already there procedural and regulation or all
these guidance documents it I don’t know how that perception would come about nor
would it make sense to me that they would be excused if they so interpreted
it so prior to the role that I’m in now I
worked for a nonprofit organization also in Rhode Island that nonprofit
organization which was a community based nonprofit was the largest recipient of
compassion capital fund and strengthening communities fund program
in the country four separate discretionary grants so I’m very
familiar with the community and faith-based initiative that came out of
the George W Bush administration and worked very closely both in my own state
as well as nationally with with faith-based organizations who were
having their first experience not large amounts I mean fifteen thousand dollars
eighteen thousand dollars but federal funds as federal funds and even though
the White House initiative and you know those programs were run out of HHS even
though there was a lot of thought and effort about making sure about how those
would operate faith-based organizations got the money
and then sort of tried to push the envelope and and and and I’d be
concerned about that situation here of okay
we’ll take them we’re happy to do this we want to do right by students you know
the I think the intentions are good and then it’s the same sort of scenario that
I they’re whoa we’ve what did we just sign on the dotted line to well let’s
let that let’s back up maybe maybe we’ve got a little bit of flexibility here or
a little bit of tweaking there and um students should not be being the cross
fire effect I can I can have some compassion for a religious school that
might see this and go oh we thought you know we’re reading down we’re being down
and feel like we qualify and then arriving at this and being like how do I
wait I don’t know how to I don’t know how to feel about this language does
this have a legal definition is this colloquial and I assessing this who’s
assessing this and now of a sudden I don’t feel perhaps qualified or eligible
but I think this language is important and I think it could and I do think that
this line B could go farther in clarifying what this language is meant
to signify and this language is meant to I think at this point meant to signify
such that you cannot carry out the duties as described elsewhere in this
document they all kind of work together part and parcel if we do start carrying
out the recommendations from the dart Department of Education to strike all of
that language then we lose a reference point which takes us back to really
square one whether we decide our government funds supposed to provide
benefits and services that are secular and now we’re just at a much larger
foundational question which I thought had been decided one last thing so as I’m hearing this
discussion what I keep hearing in the back of my head when you say things like
that or Richard says things like secular it’s only secular I mean so it’s like
medieval doctrine or just war was tied around murder being wrong but if you’re
killing someone in order to stop an unjust aggression and there’s no other
avoidable way then the double intent is makes it that murder and so I know
that’s moral philosophy it’s a constitutional law but I’m wondering it
seems to me like many people would see what they’re doing is a sacred act out
what I appreciate from Andrew is I can imagine many faith-based institutions
that would really be serious competitors for this particular program unless
they’re already doing some kind of program on their own accord I’ve
certainly seen faith-based institutions do things like Meals on Wheels programs
where they’ll stop to think are you a member of our faith tradition or will
you stop and listen to serve and they just take food to shut-ins and you know
that seems to me like I guess if anything is a secular benefit that’s
sort of getting a meal if you can’t get out is so I admit I can imagine a
scenario with all the complexity and variations of religion that exists where
someone just sees providing really the same exact services you do and just
writing a check maybe to you maybe they’re the managers they decided to say
Rhode Island whoever they get the money and they write a check for you to do
what you’re doing I can see faith institutions that would
see that as completely on mission and the good they’d want to achieve and that
would be the end of it from their perspective
even though they would see themselves I think is doing that as a religious act
so so I think I think that’s probably the
right way to think about it and nothing that you said implicates as I understand
it a problem with respect to this because again your motivation for for
doing wanting to do these programs is is a religious one that’s that’s not a
problem at all that’s just fine that’s that’s true of lots and lots of
faith-based and entities that do lots and lots of provision of social services
including government funded ones I think that the I think that the the the way
that the problem would come up is something more like this you are an
entity that as a as a call it a doctrinal matter although I don’t know
if that’s exactly the word that I mean but that you will not work with anyone
other than co-religionists and that you will you will rather than promoting
education with the kids choosing where they want to go and helping them to find
placements you will instead steer them toward your particular faith because
that’s your religious mission is to increase the size of your church those
are all things that you can do but you shouldn’t be doing with government money
and if you can do though if you if you can’t carry out this government program
without those kinds of things that’s where you’re not in a position to be
able to do what the government program is supposed to do and that’s not what
you’re talking about right you’re talking about it you’re talking about
motivation and I think that that’s just not what this gets gets out at all and
and and is the right way to think about the things to be respected and
appreciated I would like to make sure we get to our
last couple topics so that we’ve covered all the material and everybody can go
home and think about them so unless there’s any last comment on this I think
I’d like to move on okay so the next two topics I think we need to look at
together this is the combination of 600 & 602 and I think the best way to look
at this is to start with 602 which will then refer to a definition and in 600 so
where I am is in the red line yeah I’m sure before we get into the particular
section I wonder if in the way that we had Andrew sort of talked through the
the the the lay of the land and gear up so this is in the this is what the world
of accreditation correct yeah whether somebody can do that for us in the same
way as to say here’s how to think about the whole Gestalt of what’s going on so
that then we can think about these sections in that context we know that
what or I can give a very high-level overview of what accreditation is I
don’t know if Bill would prefer to do that or interrupt me if I get something
wrong okay so in order to participate in federal student aid programs
institutions have to be accredited by an accreditor that is recognized by the
Secretary of Education there are many many creditors out there we do not
recognize all of them we only will entertain requests for recognition from
a creditors who have who accredit institutions that have a federal link so
they either want to participate in the student aid program that’s run by the
federal government or they want to participate in programs from another
federal agency that they’re required to have recognition from the secretary so
we at the Department of Education have staff who receives these applications
for recognition we review them based on a number of criteria mostly from the
statutes and from regulation the staff makes a recommendation to the secretary
we also have an independent its Mizuki the National Advisory Committee for
institutional quality and integrity members of that committee are from the
public it’s an advisory committee that makes a separate independent
recommendation to the secretary on applications for recognition and based
on those two recommendations the secretary makes a determination as to
whether we will recognize the accrediting agency and so these
provisions in 602 relate to only the accrediting agencies that we recognize
these regulations go through the process for obtaining recognition the
requirements for those agencies so that’s that’s a high level yeah I wonder
if you would mind also doing something similar on state authorization sure
state authorization there is a requirement in the statute that
institutions that participate in our programs be authorized by the state we
have had regs for a significant amount of time delenn ating delineating how
what we call brick-and-mortar institutions so physical campus
locations it is a much murkier at the distance
level and that’s something that this the full committee is taking up is how to
deal with exclusively distance or even exclusively or non-exclusively
distance programs that is much harder but the the states and I will probably
get it wrong off the top of my head but there’s there’s basically three things
that the state has to look at that they have to be authorized by name so the
state can’t just say all X type of institutions or authorize they they
actually have to look at the individual institutions they have to make sure that
they are providing post-secondary as distinct from secondary so there’s
there’s some technical fields where there may be secondary education then
post-secondary they have to be looked at for their post-secondary but it’s oh and
then the other thing is there needs to be a complaint process and that looks
different in different states that can be the Attorney General’s office it can
be a separate office so that is the high level there yes I understand it to that
requirement for state authorization applies if you’re offering any college
instruction in another state including through a distance mediums so it’s not
just that you have a billboard and you’re offering all your degrees even if
it’s just one one program you need that authorization for the program to operate
great I think that is an issue that’s going to be discussed and I don’t think
that’s as simple but yes there’s our interpreting it yeah okay thank you I’m sorry okay so we are in part 602
accreditation the red line we are on page 14 at the bottom of the page
section 602 point 18 everybody found this spot okay so accrediting agencies
are these these are the agencies that we recognize they’re required to enforce
standards that respect to the state admissions of the institution including
religious mission and that’s a requirement that has been in place this
is not something new that we’re adding but I wanted to flag it because it’s
relevant for what we are adding there’s some other language in here that doesn’t
relate to this committee that the people working on accreditation are going to
look at I’m going to kind of skip over that because I think that’s not not your
expertise and others are looking at it but on page 15 is where we get into
things specifically relating to faith-based issues and that is agencies
so in the middle of the page there’s an a agencies are required to provide the
institution or program with a detailed written report that clarifies any
deficiencies in the institutions or programs compliance with agency
standards and then we are proposing to add new language that would allow an
institution to request the agency to perform a review of the accreditors
respect current institutions religious mission and provide a written response
to that review and then see it would prohibit denying
pre accreditation or accreditation or taking an action against an institution
due to a compliance gap that’s a result of the institution’s adherence to its
religious mission and I think the the last one is not related to this
committee and then I think at the same time we should talk about the new
definition that we are proposing to add which is in 600 so a separate document
there’s a red line 600 it’s another thick one and then on page 7 of that
document we are proposing to add a new definition of religious mission that was
not there so the requirement for agencies to respect the religious
mission has always been there that’s not new but what we are proposing to do is
add a definition for religious mission and I will read the proposed definition
okay so this is in a separate document this is 600 and on page 7 at the very
top you got it everybody on their page okay and I think actually he has it on
the screen as well so religious mission an institutional mission that includes
or is founded upon religious tenets beliefs or teachings and any policies or
decisions relating to such tenets beliefs or teachings including but not
limited to any policies or decisions concerning housing student life and
activities employment curriculum facilities student government governance
student admission continuing enrollment or graduation so first does everybody understand how
these documents relate and okay then I would be very interested in in your
comments and response can really well I’ll just I just wanted to make a an
overview comment that I think may get lost as we start discussing the
religious aspects of this but 602 eighteen is actually a really important
statement of academic freedom that all institutions religious or non-religious
of higher education have a real stake in this idea that the accreditor must
respect the mission of the institution whatever that mission is and you know
that’s I think maybe if we were asked to say what’s one of the most important
aspects of academic freedom for any institution it’s that it be able to
define its mission as it sees fit through its policies and the way it
conducts itself and so I just wanted to paint that that bigger picture before we
start getting into more of the weeds about but this is a really important
component of academic freedom and institutional autonomy not just for
religious institutions I I just want to speak in support of adding a definition
for religious admission it the term is used three times in the United States
Code it’s used 23 times in the CFR and it’s never defined so a definition that
gives guidance to accrediting agencies of what the department determines is a
religious mission I think that’s critical I appreciate it yeah I wanted to I’ll probably have
something as they think about it on that in a bit but I wanted to start with 602
18 in the new sections and I wanted to ask the language that the department is
proposing here where does that language come from are you sick so 2:18 yes on page 15 the
B and C that that the department is proposing that me I would say that
that’s also similar to the language found in the HEA in Section 4 96k the
religious institution rule section 496 subsection K it’s similar to that we can
pull it up ok I I might be mistaken about this but that looks to me like
language from the prosper Act which we talked about some yesterday and I wanted
it and I wanted it right and I wanted to pull that in as well which gets to this
puzzle about a you know a controversial position a bill that Congress debated
did not pass may or may not take up again and that Congress thought was
needed as a statutory matter it seems a passing peculiar thing for the
department to do by regulation what Congress chose not to do by statute and
I wonder first what the authority for that is the regulatory authority for
that and then I want to raise the question whether that’s necessarily a
good idea since these things art can do continue to be debated by Congress
whether it shouldn’t be Congress in the first instance that’s making that
decision as well as the real possibility that Congress needs to be able to meet
needs to do that in the first instance I don’t know if you have on behalf of the
department responses to that at this point but I
would love to know what the department’s thinking is well I think I would say
that we absolutely have the authority to regulate under the current statute as it
exists and there are many many bills that are proposed relating to the Higher
Education Act some of which passed some of which don’t we have an obligation to
implement the program and there is a very specific procedure laid out for how
we regulate we are following that procedure right now and I don’t think we
can predict what Congress is going to do and we need to implement the act in the
best way that we see fit and obviously if there is a statutory change that may
have an effect on what the regulations are and we would deal with that but
we’re basically implementing the current law so I may have misunderstood but what
I heard you to be saying is that the department has regulatory authority
under the Higher Education Act that is certainly true as a general statement
that’s right but that’s not I think the same as saying Authority in this
particular respect I know that I know that when I was in the department we
spent a lot of time thinking about do we have under the statutes that each sub
agency and everybody else is enforcing does the sub agency have the
jurisdiction to to enforce to make rules or anything else under the of a
particular sort and under the particular under the particular requirements of the
statute and general regulatory authority was in my experience never thought to
answer the question whether a particular regulation is authorized or not and so
that’s part of what I’m struggling with yeah so just to make sure I’m
understanding this correctly and in this same section when the language of
agencies or creditors use is referring to the same entities so agencies that
are accredited by the US Department of Education to private citizen so we
recognize agencies that accredit institutions and and accreditors can
accredit institutions regardless of what we do yes I’m sorry
in in this section agency does refer to accrediting agencies so this is the
section where I have issues inserting this from the standpoint of that ops I’m
just working for that crediting body but before I say that let me just say
someone works at a faith-based institution at one level will be easy to
have heart launch and just say well a religious mission means we don’t have to
teach courses or something that’s being facetious support of course but when the
language here says that or if we have a compliance gap with standards of an
accreditor it can’t be a problem for an adverse action
a given basis for an intersection it’s for reasons of our religious mission
that seems to me a little too general so is that as I look at this if we were to
follow that all the way through the logical possibility of how it could be
applied let’s suppose that it can work that way and faith-based institutions
got to operate with deviations on every standard and the creditor might have to
whatever degree they felt necessary from they just point of view that would
create the unintended consequence I think I’m good now so let me let me be
just to briefly restate as a faith-based institution it’s yeah I certainly
appreciate the deference to our religious initial and accrediting but as
someone who’s worked with accrediting bodies I know the purpose of
accreditation in part of course is to ensure quality and if this was
understood as meaning that faith-based institutions could be wildly deviant
from whatever standards or a wide range of standards that would result in an
implicit or explicit quality institutions so accredited it also
creates other unintended consequences so for instance I’ll speak to the field I’m
most closely connected to psychology so our graduates have to get licensed and
not every state requires that people who graduate from doctoral psychology
programs have graduated from an American Psychological Association accredited
program but most do or give preference to credentialing that comes from having
been a graduate of that that kind of program it seems to me that it would be
ill preparing those programs for their purpose if they couldn’t ensure that the
kinds of things that states are going to require the licensure end are met in the
training program and that doesn’t require that doesn’t give you a lot of
wiggle room on some of the areas in which the standards are developed for
accreditation and so as I think through this I what I did last night is I just
kind of proposed if the goal is to provide some some mechanisms that if a
program feels that it’s just being piled on because of its religious mission on
things that really can be accommodated without a loss of the really the
intention and substantial goal of accreditation then it seems like there
might be able to be achieved in slightly different ways so this is a very hasty
proposal I don’t expect us to take it up now but just for our future
consideration I would just ask you to take a look at whatever
thinking here but basically it’s recommending something other than what
is being suggested here that I think um and the creditor might be able to live
with that still provides a due process step for a faith-based institution that
feels an accreditor may be acting disregard for their mission what I have
on the first page are the relevant sections that talk about some of this
from the American Bar Association standard in rules and you can see that
APA plagiarized it years ago with the ABA s permission and then and then added
in a few other you for those of you watching on the
livestream we have had some technical difficulties and we apologize we took a
10-minute break a couple minutes after it went down so you probably haven’t
missed too much in any event we have recorded the whole thing and we will
post it on our website I think for the subcommittee I think probably we should
finish up the discussion on this and then call it a day as we’ve lost one
member and we’re about to lose another I think you have plenty to think about for
the next few weeks until we’re back together again and and we can regroup
does that sound like a plan okay with that okay good I assume that it is
appropriate for us to you know continue conversations outside of correct yeah
this has been really interesting and that there can be fruitful things that
we can talk with each other so absolutely it is completely fine for you
to talk with each other to talk with me to talk with Ashley in addition to that
we would encourage you to talk to other people that you’re representing to get
feedback from outside this room everybody was sent a list with people’s
phone numbers and email addresses on it by email I think in a few of your
packets the hardcopy doesn’t have contact information if you did not get
contact information on a hardcopy and want it we have them up here for
Department of Ed staff all of our email addresses are first name dot last name
gov which is probably the easiest way to get me and Ashley um you’re more than
welcome to reach out to us at any time so great thank you just where do we get
this OMB circular that we keep talking about where would we find you I would be
happy to send link to the OMB circular it is it’s not fun reading
but certainly it’s basically very technical a lot of it is about how to
account for the federal funds okay Haven I have a question so we left off
discussing the issue of religious mission and compliance in the case of a
example Gordon College and this sort of inquiry into its accreditation visa fee
its treatment of LGBTQI students and staff and that was falling in line with
something I was already trying to sort out for myself which is is anywhere in
this document about accreditation any specifics about does this impart any
particulars with respect to student treatment or hiring or culture issues or
non-discrimination those kinds of things like because this feels very much about
process and administration you know you have to have standards and they have to
be applied consistently but we don’t tell you what those standards have to be
and I’ll speaking for my constituency of queer and trans young adults on faith
based campuses religious mission has been at times a financially and
spiritually devastating experience for them and so I’m curious where does where
does that come up if not in part 602 I Emory I’m wondering if you could see if
Herman or somebody on his staff I actually think Nicole’s watching this it
might be better for them to respond then for me to get it wrong thank you so
hopefully we can have somebody from the accreditation staff address that more
precision so a whole that we’ll come back to it other yeah so just to openly talk about these
issues so in the proposed language I have I used the compelling public
interest phrase I don’t intend that to mean that the department gets to decide
based on its idea of how the winds are blowing what aspects of the religious
mission it can respect at any one given time or not and so so for those of you
are illegal you might be able to suggest a better phrasing that would convey that
idea even if you want to oppose what I’m suggesting there that’s fine
but if there’s another concept that better conveys what I’m trying to
suggest but that’s for discussion later on we do I just want to ask whether you
would be willing to email so what they’ll give us an on paper whether
whether the department would be willing to send that around by email and I know
that’ll be helpful for me it’s so Herman I apologize but you on
the spot like this um this is Herman bounces director of the accreditation
divisions in the office of post-secondary education oh and and
Nicole works on Herman staff so I was starting to get questions about whether
agencies are required to looking at hiring practices and other things and
Haven if you wouldn’t mind repeating your specific question it was a little
out of my league I want to make sure we get the right answer let me see if I can
make this concise so is in fact inspired by what bill passed around some examples
of kind of accrediting considerations from the American Psychological
Association American Bar Association and they delve into issues of you know fair
treatment non-discrimination what you might broadly term kind of like culture
and diversity issues and I’m curious if in setting the standards for which
organizations ought to be accredited or how those accrediting Asians ought to
carry out their duties with respect to crediting schools is is there any norm
setting around the sort of culture and diversity issues or non-discrimination
fair treatment is there a reference document somewhere unfortunately and
there’s there’s nothing really in the criteria for recognition that we look at
when we’re reviewing the crating aims that touches those specific issues I
think the main topics are their respect for the whatever the the institution’s
religious mission in and and those in those types of those types of criteria
but there’s really nothing that speaks to those types of things I just want to make sure I understood so
that’s in in general not just about religious missions but about mission in
general so if I understand your question correctly that’s right under stare
questions if you don’t it wouldn’t be a surprise
so basically regarding those things such as like hiring practices and all those
things there is there are no criteria related to that for any you know for any
institution or organization and for are there standards on other things that we
can I mean like a manual that’s here here are the things that from the
department apply and then the agencies do their own thing sir is there no such
thing yeah really we tell the agencies you have to have specific standards and
we leave that hollow and the agency then has the has the you know the requirement
to fill that in for instance standards for faculty standards for curriculum we
say you have to have those standards and then it’s up to the agency to to spell
what those are spell out what those are we say they have to have enrollment
policies right but we don’t kind of dictate what that what that is and I
think that’s I think that’s down under in 602 16 which is the which is where
the agency has to comply with all our standards criteria talks about I think
enrollment and academic calendars and and those type things yeah yeah
recruitment I would also add that the bright line metrics for creditors is
also in the HEA with just like write a part of Education actually goes off of
so those bright line metrics are in the H a section 496 so although you allow a creditors to
develop their own detailed standards there are requirements though within the
parameters for instance consistency with a the the mission of the the entities
our accrediting that sort of thing where where they are expected to comply with
ensure that the standards are complied with correct I mean so so what if they
set standards then their job is to make sure in two entities their accrediting
comply with them yes that’s absolutely true Herman before you came in I did a
high-level overview of accreditation and I wanted to make sure while we have the
accreditation experts here if you have other questions about in general about
how accreditation works or our recognition they’re the people to ask we
can bring them back but we may as well ask any questions we have now Stephen so
I guess my question be currently under the department’s oversight of
accrediting agencies if if the agency does not respect the religious mission
of the institution what is the religious institutions remedy I guess the best way to say it
what what do you all do as the department we would you know we would
hope since since accreditation is voluntary we would hope that the during
that exchange as that institution is going through the accreditation process
there would be some discussion about you know the accreditor standards versus you
know the institution’s mission and hopefully some of that stuff will get
ironed out before the accreditation process you know is completed however in
all cases under 602 23 agencies have excuse me institutions have the ability
to file complaints and of course then you know a creditors must have a
complaint policies to review complaints filed against them in the event that an
institution goes through the accreditors complaint processes and then say they’re
not happy I don’t think that your creditors treat them fairly then they
can file those complaints with our sec with our section and then what we review
to ensure that d and credit the accreditor filed its own policies and
procedures they’re clear any institution understands right so just following up on Stevens question we’re just going to say that the
criterion for the academic calendars recruiting and all at 6:02 16 a one
romanette 7 if anybody wanted to see that so just to follow up on Stephens
question can you do you haven’t well how often have there been complaints made to
the department after an institution generally not just a religious
institution has gone through the accreditors complaint process how often
does that happen then a complaints made to the department
yeah we we Nicola will say we probably process maybe could be four or five per
year yeah so and it depends the reasons for the complaints depended you know
sometimes there are students issues there are usually this when a student
feels that that something has happened and then they file their complaint with
the institution their creditor and in the students not happy with the results
and as I say then we get to complain and look into the issues so the student
files the complaint a lot of them do begin with the student now we don’t get
involved until the student exhausts the institution’s complaint processes then
once that happens if the student is unhappy with what the institution we
direct him to the accreditor and once it goes through that process many times the
student is still unhappy and then we will we will sometimes end up getting
those complaints also but our review is of the accreditor and if the accreditor
has applied its policies and procedures at the institution and that’s what we
kind of convey to the student and have any of these complaints like four or
five a year have they involved the religious mission and not that I can recall we can check
but not that I recall and so how long does the process take ballpark theater yeah its its its
parameters it’s tough we’ve had them go on for what some complaints can be
researched for depending on the evidence we receive and the review it can go on
for either a month or can go on for up to a year depending on the
correspondence back and forth between the complainant as well as the agency
and making sure the investigation is thorough at the department levels so
that’s on top of what’s happened at the accreditors that’s right we’re again at
that time we’re getting the documentation from either from the
student and the accrediting agency to make sure they’ve exhausted their use of
their the accreditors policies and to make sure that each policy was followed
based upon the criteria the department and I’m surprised the students the main
or is a frequent thing plainer complaint it what what does that look like well
it’s not a frequent I just want to let everyone it does it does happen it does
happen at times where the where the the the originator of the complaint is a
student who’s not happy with the institution’s complaint processes and
then he’s not also they’re not also not happy with how they feel the accreditor
handle the situation and those take a little longer because then we want to
make sure we get all the information sometimes we have to you know ask for
additional information documentation it takes a while to get through it we have
had complaints total amount of documentation was probably up to 2,000
pages of stuff that we have to feed through now most of it you can get
through pretty quickly because you can tell what’s important or not but but to
do due diligence we have to look at everything I’m sorry because I know
other people have their tents up or placards but can I just ask so there’s
no hearing within the process in the Cartman I assume it’s all paper it’s
it’s it really is paper so what happens is you know normally when we look at a
complaint and we make our complaint determination it will be of say we don’t
find the inst the agency non-compliant with you know with accreditation with
their accreditation standards or the criteria with the application of their
standards or criteria a complaint in which say we find an accreditor
non-compliant and say the accreditor does not agree with our finding then
that complaint has to go through part of the recognition process meaning staff we
can’t make a final determination in that case we can’t make the accreditor do
those things so what happens is we forward that and nets review we make a
recommendation we bring the accreditor in and they must appear at the National
Advisory Committee for institutional quality integrity they will look at the
complaint both of our recommendations recommendations here that will go up to
the senior Department official and then that that then will become the final
complaint determination and then it may then have other legal implications too
so normally they get handled at our level because we may find something
wrong usually your creditors will say yep
you’re correct we didn’t we didn’t follow our policy we’ll change it but in
cases where the accreditors doesn’t believe that they’re non-compliant we
can’t be the final or my staff can’t be the final determination on those
complaints and then is if when the decisions made by the secretary and is
that then appealable to a federal district court or what is that was yes
that’s every yeah they know you can always always has that opportunity I
would believe but I would I want to jump in because I abbreviated our process a
little bit I’m just the initial determination by the
secretary is not really by the Secretary’s by the senior designated
official and that decision is unappealable to the secretary and then
the Secretary’s decision is appealable so there’s there’s an internal step
which I left out it’s not I’m not trying to be real picky or anything but I just
don’t understand the process and it matters but also it’s obvious that it’s
a it can be a very lengthy process we try not to make it lengthy but to give
due diligence to everyone’s concern we we do our best to look at all the
information we have thank you I’m not sure but mine will be quick and easy I
thank you for stepping us through and explaining that I found that really
helpful and I will also very you said you’ll forward along the information on
what complaints there have been and whether there there have been about
religious mission and all that and I know I will find that immensely useful
also in figuring out what what this proposed change is addressed to so thank
you for that I just have one but so you so you want a total number of complaints
and then also how if there were any that were related to religious mission is
that correct yeah I think that was okay and I and I think that that would be
great okay to the extent that there can be if there are any on religious mission
so the details on that would be useful also okay I see Stephen is nodding as
well thank you I may be speaking into the theoretical space on this but I’m
curious if there’s been an instance of when an accreditor judged a an
educational institution to be non-compliant and that compliance gap
was justified by the institution based on religious mission is there any point
that the religious mission justification sort of breaks down or becomes simply an
irreconcilable difference between a creditor and Institute and
educational institution I’m just wondering like what are the limits to
the explanation of religious mission if there are any and maybe those have to be
found through lived experience that is so I would say right now no we have not
had any of those those situations occur and I think in those situation we would
probably because our reviews are really based on the language and the criteria
of a recognition and the criteria that we have to review when we get into those
areas that are that are like that you know we we rely heavily on our Office of
General Counsel to help us weed through those things and I think that’s how we
would have to handle a situation like that not trying to not give you an
answer but I think that’s just that’s just how we would have to cuz they’re
not they’re not black and white or cut and dry we would just have to do that I was about to say I had forgotten to put
my table tent down and then I realized I do have another question do accreditors
have any role in ensuring compliance with the civil rights laws within say
OCR’s jurisdiction I asked about that because I was there for a while and so
those are statutes that I’m familiar with does does the accrediting process
involve looking into that at all yeah our criteria doesn’t speak to that so I
really couldn’t answer that couldn’t answer that question just to follow up on that previous line
of conversation if in a department of education accreditation agency
accreditor determined that some things really had to be strict compliance
expectations because of the nature of say this is a professional accreditor or
something else and to be licensed people have to meet this criteria whatever it
is and they dug in their heels around it but in that but an accredited entity
claimed that there would be a compliance gap because if their religious mission
what would be a justifiable rationale for the accreditor to dig in their heels
around complete compliance on their standard versus deference to the
religious mission for the Department of Education I think just as you say if there was an
issue where I say a student was not going to obtain the skills that they
need to to be awarded that credential I think that would be the point whether
whether your creditor might you know Mike digging his heels and say you know
this is going to be required for licensure and then I mean I just think
that would probably be a reason that they would that they would do it again
hopefully those things will be worked out you know well before we get to that
point as I say accreditation being voluntary I’m hoping that that religious
institution would look at the accreditor standards especially if it’s a
programmatic accreditor who prepares students for licensure would look at
those requirements and make a determination at that point I hope I
answered your question hi I’m Anna Nicole thank you very much for coming I
really appreciate it you’re welcome to stay if you would like so I didn’t need to send Emory I could
have just okay great so going back to section 602 18 and the corresponding
definition of religious mission you had said before limb that you were thinking
given the absences that we should stop I don’t know if you’re still thinking that
or if you’ve kind of revised what you’re thinking on that
so it’s 343 do you want to call it a day it’s up to the committee what you’d like
to do I can stay and happy to to let you go okay then it sounds like yep
is there anything that we need to discuss right now but if you know if we
were to go ahead and break earlier versus being able to pick back up when
we meet how we discussed all the main things to initially so we can know each
other’s thoughts and then be able to be prepared for whatever comes next
yes I think we have presented all of the language we didn’t talk about each
provision in each program but all of the discrete pieces of language we did we
did discuss well with that being said I am NOT opposed to the idea of breaking
and then with our various assignments and being able to take back up with
solutions and ideas and further thoughts I concur with the manual it has been an
absolute pleasure I really appreciate all of the effort that went into this I
know this traveling was tough this week and you all offered a lot of really good
thought and ideas and thank you and I look forward to seeing you in a few
weeks Oh leave your badges and your
named tents here we’ll use them again next time you you you you you you you you Oh you

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