2022 Preview: The biggest higher ed legal, policy debates coming up this year

Major changes to higher education policy may be coming in the new year. Here are the top legal and policy stories Campus Reform will be tracking. 

The future of affirmative action 

The Supreme Court may take up a case that could change the future of college admissions. 

In Students for Fair Admissions v. Harvard University, the plaintiff alleges that Harvard should not be allowed to discriminate based on race because it receives funding from the federal government. Title VI of the Civil Rights Act of 1964 states that no organization that receives federal funding may discriminate on the basis of race. 

However, legal precedent in Grutter v. Bollinger holds that universities may have a compelling interest in creating a racially diverse campus, and thus may have a legitimate interest in considering race in admissions. 

Speech First and Southeastern Legal Foundation have filed a joint amicus brief urging the nation’s highest court to hear the case. 

Students for Fair Admissions has also sued Yale University and the University of North Carolina with similar allegations of violating the law by discriminating against students of certain races. 

Return to student loan repayment

The Biden administration announced in late December that it will extend the freeze on federal student loan payments and interest rates until May 1. 

Sec. Cardona had previously said that the earlier extension, to the end of Jan. 2022, would be the final one. 

After progressive lawmakers urged Biden to reconsider, the president ultimately caved and staved off the return to repayment by another 90 days, citing the impact of the omicron variant as reason for the extension.

Several members of the Democratic “squad,” including Rep. Ilhan Omar, Rep. Ayanna Pressley, and Rep. Cori Bush, have called student debt an issue of racial justice and asked the administration to cancel student debt in addition to extending the freeze. 

A new round of vaccine mandates

Dozens of colleges have announced that they will require their students and staff to receive a third dose or booster vaccination against COVID-19.  Emerson College, Bentley College, Princeton University, University of Notre Dame, and all University of California institutions will require the additional jab. 

The California State University, the University of Virginia, George Washington University, Rice University, Duke University, and the University of Michigan will also require a booster in the absence of a medical or religious exemption. 

When colleges instated their first round of vaccine mandates, some students fought back against the policies. Students at Indiana University sued in an attempt to block their school’s vaccine mandate, but a judge denied their request for an injunction. The students appealed to the Supreme Court, which declined to hear their argument in favor of an injunction. 

Critical Race Theory

Campus Reform has tracked the status of multiple state’s handling of Critical Race Theory. Numerous states have introduced legislation to ban implementation of the material at the K-12 and college level. 

Tennessee, Arizona, Florida, Texas, and North Dakota were among the states that successfully passed legislation banning CRT content at the K-12 level. Iowa, Idaho, Arkansas, and Oklahoma instituted a policy to prevent CRT from being taught at both levels.

Eighteen other states have proposed legislation to counter CRT and should be watched as we enter the new year. 

Missouri, Rhode Island, North Carolina, West Virginia, Ohio, and Maine have all introduced legislation to ban CRT at the K-12 level. Missouri and Rhode Island bills are currently in committee.

South Carolina, Kentucky, Wisconsin, Pennsylvania, Mississippi, and Alabama have all introduced bills to ban CRT in both K-12 and college classrooms. Louisiana and New Hampshire have introduced such bills, but they have currently been tabled.

Recently, South Dakota Governor Kristi Noem and Florida Governor Ron DeSantis have proposed bills that would prohibit CRT being taught at both levels of education.

A new Title IX policy

President Biden campaigned on undoing the Trump-era Title IX rule, which legally requires colleges to uphold due process rights for all students. The existing rule also requires colleges to use a consistent evidentiary standard and to give both students the opportunity to see and respond to evidence in their hearing. 

Critics say the rule is too friendly to accused students. 

The Department of Education’s Office for Civil Rights announced Dec. 10 that it will publish a new proposed rule in April 2022. 

Debate over transgender athletes

The debate over transgender athletes will heat up in state legislatures, including those in South Dakota and New Jersey. 

South Dakota Gov. Kristi Noem has pre-filed a bill for the 2022 legislative session that would require student-athletes at all levels to compete as the gender that matches their biological sex. 

The Argus Leader reports that Noem’s proposed bill is intended to codify into law two earlier executive orders, which banned biologically male athletes at the K-12 and college levels from competing in women’s sports. 

In New Jersey, a bill filed in March is getting new attention in light of transgender swimmer Lia Thomas’ success on the UPenn women’s swim team. 

Republican lawmakers are urging the state Senate Education Committee to advance the Fairness in Women’s Sports Act, as reported by the Press of Atlantic City. 

Much like the South Dakota legislation, the bill being considered in New Jersey would protect women’s sports by restricting participation to biological women.

New academic standards

California introduced a new standard for mathematics that discourages calculus in an attempt to boost equity in the classroom. 

This framework would eliminate advanced mathematics courses in middle school as well as a pathway toward twelfth grade calculus. Advanced options would not be available until junior year. 

Numerous faculty members, professors, and alumni from higher education institutions signed an open letter condemning the “trends in K-12 Mathematics education in the United States.” The California Mathematic Framework is cited as an explicit source of concern for the “unintended consequences” of the attempt to minimize disparities in education at the high school level.

In Minnesota, the Board of Education is considering an update to the social studies framework that would structure classroom content around “power structures” and “systems of oppression.” 

Benchmarks would be set for kindergarten, sixth, and nineth grade to ensure students are on track with the social justice initiatives. 

The standards are still in draft form but would take effect in 2025. 

The draft is currently in an initial “public comment period” and will remain stationary until January 14. Comments will then be reviewed, and the statutory rulemaking process will proceed. 

The return of Build Back Better

Though the Democrats have temporarily shelved their Build Back Better plan, they plan to revive it in 2022, according to the White House. 

The Biden administration made free community college a provision in the plan.

The bill passed through the House on November 19 in a narrow 220-213 vote but has since stalled in its advancement to the Senate floor after it became clear it would not compile unwavering Democrat support.

Recently, West Virginia Senator Joe Manchin announced his intent to vote “no” on the bill, which would be a decisive blow to the Biden administration. 

Biden released a statement declaring his belief the bill will advance following discussions to “bridge [their] differences” and reiterated a determination to push the bill to a vote “as early as possible.”