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Published: 5-01-2011, 10:23

Higher Education Act (HEA)

The Higher Education Act of 1965 (HEA), Public Law 89-329, was initiated and passed as a part of President Lyndon Johnson’s ambitious social policy programs, which were known as the “Great Society.” The many subsequent reauthorizations and various amendments of the Higher Education Act have continued to provide means for greater access to higher education. This entry discusses the most noteworthy sections of original law and of the legislative changes chronologically. In addition, the entry reviews relevant cases that have emerged in court and that challenged applications of the law.

The main impetus for the Higher Education Act was President’s Johnson’s desire to use education as a tool for economic growth and development, an approach that fit within his broader social policy agenda. For example, Johnson sought to push the United States toward greater opportunities for the disenfranchised through governmental action, such as the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Elementary and Secondary Education Act of 1965. The HEA was designed to make higher education more accessible to populations of persons who were previously unable to attend these educational institutions because of economic circumstances. The Higher Education Act provided grants to institutions of higher learning for research, allocated need-based aid to students in the form of scholarships and loans, and attempted to link improvements in higher education with K–12 education through support for teacher preparation and advancement.

In the decades after its passage, the Higher Education Act has been amended to further support its original intent of providing greater opportunities for individuals to attend higher education and supplying resources to improve the facilities of colleges and universities. One of the most significant changes related to the HEA came in the passage of the omnibus Education Amendments of 1972 (Public Law 92-318), which included the Patsy T. Mink Equal Opportunity in Education Act (now commonly referred to as Title IX). This provision prohibited discrimination based on sex in any educational program that was to receive federal support and funding; it is now codified at 20 U.S.C. § 1681. Today, the term Title IX is seemingly synonymous with equality in athletics, but the legislation was not specifically written to remedy inequality in this area. Athletics just happened to provide the most egregious example of discrimination.

The Title IX provisions of the Higher Education Act have been repeatedly litigated. Specifically, in Cannon v. University of Chicago (1979), the U.S. Supreme Court held that individuals had the right to bring suit under Title IX. Further, in Grove City College v. Bell (1984), the Court ruled that Title IX could also be applied to private colleges that do not get direct grants from the federal government but whose students use federal financial aid. However, the Court restricted the scope of the regulations so that they did not have to be applied to the entire institution—therefore exempting athletics in the eyes of some critics. Eventually, through further litigation, near parity was achieved, and Title IX is now seen as a great success for equal rights.

In the Higher Education Amendments of 1992 (Public Law 102-325), which included Title IV, Congress attempted to crack down on technical schools, colleges, and universities that provided financial incentives to admissions officers based on a commission system in the recruiting of students. This step to combat the enrollment of academically underprepared students into programs of marginal quality and value succeeded for some time. However, this success was fleeting, culminating in the filing of a rash of lawsuits against the for-profit education sector. In many of these cases, employees sought relief under the False Claims Act for violations of Title IV, which prohibits such unscrupulous tactics. One of these prominent cases was United States of America ex rel. Hendow v. University of Phoenix (2008). Eventually, the Apollo Group reached a settlement agreement with the U.S. Department of Education by paying a $9.8 million fine after a review of the University of Phoenix recruiter and admissions officer compensation packages found them to be problematic.

During the next set of discussions around the reauthorization of the Higher Education Amendments of 1998 (Public Law 105-245), there was congressional debate on the Riggs Amendment, which many saw as a frontal assault on affirmative action policies in higher education institutions. The amendment sought to add a new Title XI, which would have eliminated federal funding for any education program subject to the Higher Education Act that used any preference or discrimination in admissions. The amendment was not adopted, and the Supreme Court eventually stepped in to address race and admission issues in the cases of Gratz v. Bollinger (2003) and Grutter v. Bollinger (2003), striking down the use of race-conscious admissions policies in undergraduate programs at the University of Michigan but upholding its use in the university’s law school.

Chapter 2 of the final bill that emerged in 1998 included a new program called Gaining Early Awareness and Readiness for Undergraduate Programs (GEAR UP). This provision was created to grant greater access to higher education by teaching the skills necessary for admission and success in higher education to underserved students. The provision is designed to accomplish its goal by affording precollege students access to mentoring relationships with college students and to college preparatory programs often conducted on college campuses.

Another important and controversial change in the Higher Education Amendments of 1998 and to the Higher Education Act (HEA) was a small addition to the Free Application for Federal Student Aid (FAFSA). This form must be completed by students to be eligible for financial assistance through federal loan guaranty programs, such as the Perkins and Stafford programs, as well as aid in the form of Pell grants. What has become known as “Question 31” asks, “Have you been convicted for the possession or sale of illegal drugs for an offense that occurred while you were receiving federal student aid (grants, loans, and/or work-study)?” This provision led to a case, Students for Sensible Drug Policy Foundation v. Spellings (2006, 2008), in which a federal trial court in South Dakota rejected the plaintiff’s claims that the question and penalties for an affirmative answer violated Fifth and Eighth Amendment protections. The case was dismissed on the ground that the plaintiff failed to state a claim. The Eighth Circuit affirmed the dismissal on the bases that the statute demonstrated congressional intent that the penalties were designed to be civil in nature and that the law was not so punitive in its purpose or effect as to transform a civil penalty into criminal penalty.

The most recent reauthorization of the Higher Education Act was enacted on August 14, 2008, after many extensions and a half-decade past the expiration of the previous reauthorization. The bill finally materialized, with a slightly different title, as the Higher Education Opportunity Act of 2008 (Public Law 110-315). While the legislation is set to expire on September 30, 2014, it will undoubtedly be reauthorized after much political wrangling. The following sections highlight some of the most crucial changes to the existing statutes.

An often overlooked issue in higher education is the continued proliferation of “diploma mills” throughout this country and, with the rise of the Internet, around the world. Many students are taken advantage of by proprietors of fake colleges and universities that provide degrees for a fee and little or no academic work. Most of the previous federal legislative efforts in this area have been directed at protecting the interests of the government in terms of loan guarantees, but in the 2008 reauthorization, the term diploma mill is defined for the first time along with several related provisions to increase public awareness about these illegal activities (§ 109). Further, this section urges greater cooperation between the law enforcement agencies that are responsible for investigating and prosecuting crimes related to diploma mills.

Many policy makers sought to include accountability measures in the 2008 reauthorization inspired by the No Child Left Behind Act of 2001 in an attempt to make higher education institutions more responsible for student learning outcomes and for the public money invested in educational programming. Needless to say, resistance to these efforts from higher education institutions resulted in contentious debate around the bill. In the end, the institutions prevailed on defining student success for themselves and not having to apply an external standard for judging success of the institution (§ 495).

One of the most pressing issues facing students and parents planning for higher education is the continuing increase in the cost of tuition and fees well above typical rates of inflation. As a part of the 2008 legislation, the U.S. Department of Education is supposed to provide an increased level of public information regarding higher education costs and their rates of increase. These measures include information about the most expensive colleges (§ 132c), net price calculators (§ 132h), state allocations (§ 132g), and four-year tuition calendars (§ 132j). All of this data is geared to provide the public with better information to plan for higher education costs.

Another section of the legislation also addresses rising costs of higher education. Here, the federal government increases the amount of the Pell grants and makes them available in the summer (§ 401). This is to allow students to complete their programs and degrees in a timelier manner. Also, reform in the area of access to student aid comes in the form of an attempt to streamline the process to apply for aid (§ 110).

Other additional sections of the 2008 legislation are worth noting. The revisions changed the ways in which student loan programs could be managed in the wake of scandals (§ 1001); teacher education programs received some guidance about teaching in a digital age (§ 230); international education programs continued to stress the need to increase the number of area specialists and area studies centers (§ 601); and there was funding provided for numerous studies, including research on bias in student achievement tests (§ 1110) and minority male achievement (§ 1109).

Other provisions added to the Higher Education Act seem to be more ideologically driven rather than simple expansions of higher educational opportunities. One of the first of these provisions is § 104, which provides the sense of the Congress that higher education should be a forum for the free exchange of ideas as well as a place where “students should not be intimidated, harassed, [or] discouraged from speaking out.”

In the years since Napster was started on a college campus, peer-to-peer music sharing has continued to evolve; the law and owners of intellectual property have tried to catch up with both students and their technology. In the recent legislation, § 488 compels college and university officials to offer advice to students with regard to relevant statutes that prohibit unauthorized sharing as well as the means that may be used to track down the biggest perpetrators, including checking on bandwidth usage.

The last noteworthy provision is § 805, “American History for Freedom.” This section offers grant money for institutions and programs that teach and promote the values and history of free institutions; such an institution is defined by the legislation as “an institution that emerged out of Western civilization, such as democracy, constitutional government, individual rights, market economics, religious freedom and religious tolerance, and freedom of thought and inquiry.” It is not difficult to assume that this insertion and funding is another looming dispute in the culture wars over higher education’s historical canon and related issues around multiculturalism.

Aaron Cooley

See also American Association of University Professors; Historically Black Colleges and Universities; Stafford Act

Further Readings

  • Altbach, P., Berdahl, R., & Gumport, P. (Eds.). (2005). American higher education in the twenty-first century: Social, political, and economic challenges (2nd ed.). Baltimore: Johns Hopkins University Press. 
  • Kaplin, W., & Lee, B. (2006). The law of higher education: A comprehensive guide to legal implications of administrative decision making (4th ed.). New York: Jossey-Bass. 
  • Lucas, C. (2006). American higher education: A history (2nd ed.). New York: Palgrave Macmillan. 
  • Olivas, M. (2006). The law and higher education: Cases and materials on colleges in court. Durham, NC: Carolina Academic Press. 
  • Roth, J. (Ed.). (2007). Higher education law in America. Malvern, PA: Center for Education & Employment Law. 
  • U.S. Department of Education. (n.d.). Policy: Higher education—legislation. Retrieved April 24, 2009, from http://www.ed.gov/policy/highered/leg/edpicks.jhtml 
  • Woolley, J. T., & Peters, G. (n.d.). The American presidency project [online]. Santa Barbara: University of California (hosted), Gerhard Peters (database). Retrieved April 24, 2009, from http://www.presidency .ucsb.edu/ws/?pid=27356 

Legal Citations

  • Cannon v. University of Chicago, 441 U.S. 677 (1979). 
  • Civil Rights Act of 1964, Pub. L. No. 88-352. 
  • Elementary and Secondary Education Act of 1965, Pub. L. No. 89-10. 
  • False Claims Act, Pub. L. No. 99-562 (1986). 
  • Gratz v. Bollinger, 539 U.S. 244 (2003). 
  • Grove City College v. Bell, 465 U.S. 555 (1984). 
  • Grutter v. Bollinger, 539 U.S. 306 (2003). 
  • Higher Education Act of 1965, 20 U.S.C. §§ 1001 et seq. (2008). 
  • Higher Education Amendments of 1992, Pub. L. No. 102-325. 
  • Higher Education Amendments of 1998, Pub. L. No. 105-245. 
  • Higher Education Opportunity Act of 2008, Pub. L. No. 110-315. 
  • No Child Left Behind Act, Pub. L. No. 107-110 (2001). 
  • Students for Sensible Drug Policy Foundation v. Spellings, 523 F.3d 896 (8th Cir. 2008). 
  • Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681. 
  • United States of America ex rel. Hendow v. University of Phoenix, 2008 WL 4542252 (E.D. Cal. 2008). 
  • Voting Rights Act of 1965, Pub. L. No. 89-110.
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