Update: The Biden Administration and Higher Ed

The AAUP engages in advocacy and legal work on a range of issues affecting higher education, and we are pleased to report that this winter there have been positive developments in a number of areas. While much work remains to be done to ensure widespread access to quality higher education for all, these developments are good news for the higher education community.

Coronavirus Relief Package. Last week, President Biden signed into law a $1.9 trillion coronavirus relief package, which includes an additional $40 billion in aid for higher education. Institutions must spend about half of the money to help struggling students with living expenses and the technology needed for remote classes. It is still unclear whether undocumented and international students will be eligible for relief. The law also provides dedicated support to historically Black colleges and universities, tribal colleges and universities, Hispanic-serving institutions, and other minority-serving institutions to address the disproportionate effect of the pandemic on those institutions and the students they serve. The AAUP, along with coalition partners, is advocating for a New Deal for Higher Education that would significantly reinvest in our nation’s colleges and universities.

Graduate Employee Unionization. In a major victory for graduate employees at private universities, the National Labor Relations Board (NLRB) announced last week that it was withdrawing a rule proposed in late 2019 that would have barred graduate assistants from engaging in union organizing and collective bargaining under the protection of federal law. The AAUP has long supported the bargaining rights of graduate employees and has submitted amicus briefs in cases on this issue as well as submitting comments opposing the 2019 proposed rule and demonstrating both that graduate assistants are employees with the right to unionize under the NLRA and that unionization advances their academic freedom.

Deferred Action on Childhood Arrivals (DACA) and Immigration Reform. As one of its first acts, the Biden administration issued an executive order to preserve and fortify the DACA program, which allows undocumented immigrants brought to the United States as children to remain in the country legally and expands access to higher education by providing eligibility for in-state tuition and state-funded grants and loans to participants. In 2017 the Trump administration sought to terminate the DACA program, despite overwhelming opposition to this move from the higher education community. Lower courts prevented the termination of the program, and ultimately the US Supreme Court, in a case in which the AAUP joined an amicus brief supporting the DACA program, found that the Trump administration’s attempt to terminate the program was unlawful and allowed it to stand.

The Biden administration has also proposed comprehensive immigration reform legislation to strengthen and improve the immigration system, including expanding and making permanent the DACA program and providing a pathway to citizenship for Dreamers. The legislation could also ease the enrollment of international students, as the AAUP has advocated.

Travel Bans. On Inauguration Day, President Biden also repealed various travel bans that barred or severely limited the ability of students, exchange scholars, and other visitors from a number of predominantly Muslim countries from entering the United States. The Trump administration had issued four orders banning travel from certain countries. The AAUP and the higher education community overwhelmingly opposed the travel bans, and courts prevented the implementation of the first three. However, in a case in which the AAUP joined an amicus brief in opposition to the travel bans, the US Supreme Court upheld the fourth version of the ban in 2018. The Biden administration’s proclamation revokes the travel bans, finding that they are “a stain on our national conscience and are inconsistent with our long history of welcoming people of all faiths and no faith at all.”

LGBTQ Discrimination. Another executive order issued on Inauguration Day extends federal nondiscrimination protections to discrimination based on gender identity or sexual orientation. The order builds on the Supreme Court’s landmark 2020 ruling in Bostock v. Clayton County, Georgia; the AAUP joined an amicus brief in this case, arguing that workplace discrimination based on LGBTQ status is unlawful. In the case, the Supreme Court extended protection of a federal law banning employment discrimination based on sex to individuals who identify as lesbian, gay, bisexual, or whose gender identity differs from their sex assigned at birth. Reversing the Trump administration’s approach, the Biden order extends this protection to discrimination based on sex forbidden by Title IX and other federal anti-discrimination statutes and regulations.

Race in Admissions. On February 3, the Biden administration dropped a lawsuit brought by the Trump administration against Yale University that had accused Yale of discriminating against white and Asian American applicants in its admissions process. This lawsuit was one of many brought in a concerted effort to end the consideration of race in college admissions. The AAUP has repeatedly joined amicus briefs supporting the ability to use race as one factor in university admissions. While the dropping of this suit indicates that the administration will take a more balanced approach to the issue, private parties are seeking to bring a case to the US Supreme Court in efforts to outlaw such consideration.

Racial Equity. Last fall, the Trump administration ordered federal agencies and federal contractors (potentially including colleges and universities) to end trainings that address topics like white privilege and racism. The AAUP and many others in the higher education community spoke out about bans on racial equity training. President Biden reversed the Trump order and replaced it with a new executive order requiring federal agencies to assess their equity and diversity activities.

Student Debt. With coalition partners, the AAUP is calling for the cancellation of student debt for borrowers who have unjustly shouldered the burden of financing higher education the last forty years. The Department of Education has extended through September 2021 a moratorium on federal student loan payments. In response to concerns that debt cancellation could trigger damaging tax consequences for borrowers, last week’s coronavirus relief law includes a provision that says if student debt is cancelled, the value of the amount forgiven will not be taxed by the federal government.

Far more work remains to be done, but we are heartened by these first steps and look forward to continuing to advocate for equity and access in higher education.


Significant Supreme Court Decisions

We want to highlight two significant and startlingly positive Supreme Court decisions that came out this week with important implications for many faculty and students—and for higher education in general. In both cases the AAUP joined an amicus brief for the prevailing side.

In Bostock v. Clayton County, Georgia, et al., the Supreme Court ruled that Title VII of the Civil Rights Act of 1964 protects gay and transgender workers due to its prohibition of discrimination based on sex. The ruling allows employees discriminated against based on their sexual orientation or transgender status to sue. While questions remain about the rights of religious employers and practical details such as bathrooms and locker rooms, the court emphatically states that “employers are prohibited from firing employees on the basis of homosexuality or transgender status.” Read a summary of the decision and amicus brief.

In Department of Homeland Security et al. v. Regents of the University of California et al., the Supreme Court blocked the current administration’s attempts to end Deferred Action for Childhood Arrivals (DACA). The DACA program allows undocumented immigrants brought to the United States as children to remain in the country legally and expands access to higher education by providing eligibility for in-state tuition and state-funded grants and loans to participants. However, the ruling leaves open the possibility that this administration may try again to eliminate DACA. As the court states, “The dispute before the Court is not whether DHS may rescind DACA. All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so.” Read a summary of the decision and amicus brief.

The AAUP applauds these rulings and believes they provide critical support for members of the AAUP community and the students it serves. We emphatically support protections against discrimination, and our legal work reflects our commitment to promoting diversity, tolerance, and openness on university campuses.


AAUP Signs on to Brief in Support of Dreamers

Last week, the AAUP, together with forty-three educational associations, signed onto an amicus brief submitted to the Supreme Court in support of the Deferred Action for Childhood Arrivals (DACA) program, whose participants are often referred to as “Dreamers.” The brief calls the DACA program “an unmitigated good for this country, its higher education system, and the young persons whom it has benefited.”

The brief was prepared by the American Council on Education and submitted to the high court in the consolidated DACA cases Dep’t of Homeland Sec. v. Regents of Univ. of Cal.et.al.

The amicus brief emphasizes that “DACA has been a symbol of tolerance and openness of our university campuses” and warns that rescinding DACA would broadcast to foreign-born students and potential students from around the globe a message of exclusion that would “irreparably damage the reputation of America’s higher education system in the eyes of the world.”

The Supreme Court is scheduled to hear oral argument in this case in November and a decision is expected before June 2020. The Trump administration moved to end DACA in 2017, but federal courts blocked that attempt. At that time, the AAUP issued a strong statement in support of DACA noting that “a large number of those granted DACA status are our students.” Most recently, the Court of Appeals for the Ninth Circuit upheld one of the district court’s orders requiring the Trump administration to keep the DACA program in place.

You can find a link to the full brief here.

Risa Lieberwitz
General Counsel, AAUP

One Faculty, One Resistance

After last November’s election, we expressed our concern about unique threats posed by the new administration to core institutions of our democracy and to academic freedom. In the months since, we have seen these threats begin to unfold.

Faculty members are being targeted and harassed, the freedom to join together on the job is in jeopardy, and producers of independent thought and knowledge, including faculty, scientists, and journalists, are threatened. The academic year has begun with a spate of racist incidents on campus, another travel ban aimed primarily at Muslims, the decision to end the DACA program that grants residency to many of our students, and, just last Thursday, a decision by the Supreme Court to take up a case that could strip workers in unions of rights.

We believe that democracy thrives on dissent, critical inquiry, free speech, and free research. And that means that we must do more than witness these events; we must resist them.

That’s why we invite you to check out our One Faculty, One Resistance campaign.

The AAUP is the voice of the profession. As such, we’ve been speaking up for academic freedom for more than 100 years. And in these troubled times, we’re doing it with renewed urgency and vigor.

We’ve created a central space for our campaigns and materials related to these threats– materials to help you fight against targeted harassment of faculty and for the right to teach and conduct research freely, and to resist political interference and litmus tests in higher education.

Take a look around and share news of the campaign! A powerful resistance requires collective action and voice. Click here to share.

Graphic of the website

We’ll be in touch soon.

Rudy Fichtenbaum
President, AAUP

Trump Is Wrong to Eliminate DACA

The AAUP denounces in the strongest possible terms the decision by the Trump administration to end the Deferred Action for Childhood Arrivals program (DACA). This decision marks a continuation of the anti-immigrant racist policies that the administration has supported from the start.

Many of our members come from families that immigrated to the US. Their forebears came to the US for the same reason that today’s immigrants do, for a better life for their families, especially their children. But the Trump administration, feeding off the fears and insecurity of many Americans, has used the issue of undocumented workers, along with racism and anti-Semitism, to divide people and disguise the real causes of the declining standards of working people, including working people of color.

DACA, which provides renewable two-year work permits for immigrants who were brought to the country illegally as children, was created by President Obama after the Republican-led House of Representatives refused to act on immigration. About 1.9 million undocumented young people are eligible to apply for the DACA program. Nearly 800,000 had their request for DACA status granted in 2016. Of those who have DACA status, about 576,000 are enrolled in college. In other words, an overwhelming majority of those granted DACA status are our students.

One of the major factors that makes American higher education a world class system is the diversity of our faculty and students. We owe it to these students and their families, as well as to other undocumented young people, to speak out against this action in the strongest manner possible. We call on our members to urge Congress to act immediately to undo President Trump’s action and allow these young people to remain in our classrooms.

We also urge Congress to enact a comprehensive immigration reform policy that will welcome immigrants to our shores–those fleeing political persecution and violence as well as those who simply seek a better life, regardless of their race, religion, or national origin.

Rudy Fichtenbaum
AAUP President