Source: Dan Froomkin.
HIGHLIGHT: Financial aid officers cite administrative headaches and costs, and many object on principle to tying student aid to compliance with the draft registration law.
BODY:
Higher education officials are disturbed about the latest major law on student financial aid, not only because of the new administrative burden it creates but because it links two issues that many of them would rather keep separate: registration for the draft and education.
The Solomon amendment, named for its first House sponsor, Gerald B. H. Solomon, R-N.Y., has been cloaked in controversy and judicial uncertainty from its passage last summer to its last-minute rescue in June by the Supreme Court from a Minnesota federal judge's finding of unconstitutionality. Many surprised college and university administrators are rushing to comply with the law, which took effect on July 1, but with a three-month grace period for enforcement.
Financial aid officers across the country have expressed their frustration over the possibility of administrative delays, the paperwork burden and the costs of enforcing the law. Some estimate that the process of mailing out and then receiving the required compliance forms from all federal aid applicants will cost already strapped financial aid offices as much as $15,000 each, which could total several million dollars nationally.
For many higher education officials, though, opposition to the law goes beyond bureaucratic considerations. And several colleges, citing a financial aid commitment to their students that is independent of their draft status, have announced programs to assist those who are denied aid.
The new law, an amendment to the Defense Department's fiscal 1983 authorization bill, was signed by President Reagan in September 1982. It was first proposed by Sens. S. I. (Sam) Hayakawa, R-Calif., and Mack Mattingly, R-Ga., in May of that year. On the Senate floor, where the amendment passed by a voice vote, proponents argued that its enactment would at once encourage recalcitrant students to register and stop the flow of federal funds to those in violation of the law.
Two and a half months later, Solomon proposed a similar amendment on the House floor, setting off a protracted debate. An amended version eventually passed, 303-95.
The law requires all college and university students to file with their schools a statement of compliance with the 1980 Selective Service Act or be denied all aid under Title IV of the 1965 Higher Education Act. Aid is currently distributed to approximately 4.5 million students under Title IV, at a cost of almost $6 billion dollars a year. Included are guaranteed student loans, Pell grants for needy students, supplemental educational opportunity grants, college work-study, national direct student loans and state student incentive grants. (See NJ, 7/17/82, p. 1263.)
Under the law, before processing requests for such federal aid, colleges must require applicants to fill out a form by checking one of various boxes. Students can state either that they are not required to register for the draft -- for such reasons as being female, not yet 18 years old or born before 1960 -- or that they in fact have registered.
According to Jim Moore, director of financial assistance programs at the Education Department, auditors will check the accuracy of randomly selected compliance statements as part of the normal program reviews of schools distributing federal aid.
"We're going to find out this year what our experience is," he said. If more verification than a signed form is found to be necessary, the department could begin in 1985 to require a Selective Service letter of registration acknowledgment from those students who say they have registered, Moore said.
Estimates of the number of students who have not registered for the draft but would otherwise be eligible for Title IV aid vary widely. Using Selective Service figures showing that 96 per cent of all young men are in compliance with the law, estimates of student non-registrants range from 45,000 to 90,000. (See box, p. 1786.)
While the Education Department was working on regulations to implement the law, some "public interest" groups already were working to have it struck down. Several groups questioned the constitutionality of the law, arguing that it violates due process by assuming guilt and asks students to incriminate themselves. Some also attacked the law for discriminating against the needy.
Two groups in Minnesota brought a lawsuit in U.S. District Court on behalf of six unnamed student non-registrants. The Minnesota Civil Liberties Union and the Minnesota Public Interest Research Group argued that the law is unconstitutional because it assumes a student is guilty of violating the Selective Service Act when he fails to sign a form and then punishes him for the crime without due process of law.
On March 10, the district court issued a temporary injunction against the law, which was scheduled to take effect on July 1, ruling that the students faced the "threat of irreparable harm" if the law were enforced while legal arguments continued.
The Education Department was still encouraging colleges and universities to print the compliance statements for students to sign -- voluntarily, until further notice -- but many schools listened to the advice of such legal figures as David Landau, legislative counsel for the Washington office of the American Civil Liberties Union. "No one should worry about this law now," Landau said in March. "The issue will not be resolved in court for at least a year."
On June 16, opponents of the law were given more reason to think they had succeeded in preventing its enforcement. Ruling that the law was unconstitutional, the district court issued a permanent injunction against it and ordered the Education Secretary to send notices of retraction to all schools and stop distributing compliance forms.
The Education Department began taking steps to comply with the court's ruling, but at the same time the Secretary was in contact with the Selective Service, the White House and the Justice Department in an attempt to get the law back on the books.
On June 24, the department asked the Supreme Court for a stay of the injunction, pending appeal. The Court granted it on June 29, and two days later, the law went into effect on schedule. Gail Suchman, a senior attorney with the Minnesota public interest group, said she expects the case will be put on the Court's calendar soon, and added that she hopes for a decision in early spring.
Quick action by the Education Department after the stay was issued prevented chaos, though a good deal of confusion was unavoidable. A university association official said he had feared that the whole aid program would have to stop until students returned to campus. But a "Dear Colleague" letter from the department, dated July 1, announced a one-month grace period, allowing financial aid ffices to continue processing aid applications, on the condition that compliance forms be filed later. Subsequently, the grace period was extended to Oct. 1.
Although many schools have decided not to use the grace period, thereby avoiding time-consuming follow-ups, others are relieved. Smaller schools, especially, were worried about their ability to comply on time.
No significant delays in the processing of aid have been reported, either in financial aid offices or in banks that write guaranteed student loans.
A few higher education officials, most notably Boston University president John R. Silber, have expressed support for the law. Boston University had planned, in fact, to attach a similar rider to its own aid application forms this year, said financial aid director Charles Jack Sheehan. It decided not to do so after the injunction in Minnesota was granted, but Sheehan predicted that the option would be considered again next year.
Other financial aid officers complain that even with the grace period, the law is causing a heavy administrative burden. The University of Michigan estimates its own cost this year at $12,000 to $15,000. Virtually all schools cite significant costs in man-hours, computer hours or postage. "Frankly, we didn't need one more regulation," said Richard W. Black, director of financial aid at the University of California (Berkeley). "It requires extra effort that we can ill afford."
Among the most annoyed by the paperwork are the women's colleges. "It's frustrating because it seems so pointless," said Anne Keppler, the financial aid director at Smith College. "They could have exempted the women's colleges," she said.
Beyond practical objections, a large number of university presidents and other higher education officials object strongly to the law on principle. "Congress has linked two issues I can separate," said Yale University president A. Bartlett Giamatti in November of last year, setting the theme for statements by many officials since then.
The threat of federal aid cutoffs has produced a wide range of reactions from the schools. About 200 colleges and universities have a stated policy of ensuring that all students talented enough to enter will be admitted regardless of their need, and that once admitted, they will be offered financial aid packages sufficient to allow them to continue in school.
Often, a large part of those aid packages consists of federal grants, loans or work-study programs. Some schools say they feel a commitment to meet full financial need, including that of students who do not register for the draft. Others argue that such students are making a voluntary decision and are therefore not meeting the quid pro quo of a full need policy -- to receive all outside aid possible. But virtually all the schcols report that they will try to offer some form of help to students who lose federal aid for non-registration if they can afford it.
The stand taken by Harvard University president Derek C. Bok may represent an emerging consensus among officials at several major universities. In an Aug. 12 statement, Bok expressed his personal doubts about the constitutionality and fairness of the Solomon amendment, adding that he was "uncomfortable with a measure that interferes with the normal relationship between universities and students by forcing educational institutions to help police a federal statute that has no educational purpose."
He opted not to replace federal grants with Harvard money, however. Instead, he announced that Harvard will help non-registrants by making available its own funds for market-rate loans and by keeping open to them campusjobs that are not subsidized by federal work-study aid.
Market-rate loans, at approximately 14 per cent interest, do not compare favorably with guaranteed student loans, at 9 per cent, which only begin to charge interest once the student leaves school.
Other schools taking similar steps include Massachusetts Institute of Technology and Dartmouth College. Some schools, such as Columbia University and Brown University, say they would like to but don't have the resources.
Mary Murphy, director of financial aid at Columbia, says that school has very little money in its loan program, in which loans are subsidized to the guaranteed loan rate of 9 per cent. Once those loans are gone, she said, "we'll assist students by counseling them . . . and refer them to banks for loans at market rates." Columbia may set up a special program with a bank, she said, adding that banks often will not make loans to individual students because of the risk.
Brown University views the law as "bad public policy," according to Robert A. Reichley, vice president for university relations. But it cannot afford to replace lost funds, he said.
Among the schools reacting most forcefully to the new law is Yale University, which will use institutional funds to replace the federal money that would normally be included in the financial aid package but is not available to non-registrants. Like Harvard, Yale will replace guaranteed loans with unsubsidized loans. But in addition, Yale will replace Pell grants with Yale grants, according to Jacqueline Foster, director of undergraduate financial aid.
Foster said non-registrants will be treated like others who are ineligible for federal aid, namely foreign students. "It's very much an extension of what we do anyway," she said. Although details have not yet been worked out, she expects that the funds spent to replace Pell grants will be a relative drop in the bucket," because altogether Yale students only receive $650,000 yearly in Pell aid. "And the loans theoretically pay for themselves," she added.
Yale estimates the cost to a student over four years of getting unsubsidized loans instead of guaranteed loans to be $3,000 to $4,000.
Officials at Swarthmore College, a liberal arts school with a long Quaker tradition, are following a similar policy. "Quaker values came up, but the policy came as a result of what we think is our educational mission," said Eleanor Johnston, assistant to the college's president. "The school is willing to make up the need after the student has gotten all the help for which he is eligible," she said. Swarthmore has increased its financial aid budget by approximately 1.5 per cent in expectation of new needs of some of its students, she said.
State school officials have also criticized the law. C. Peter McGrath, University of Minnesota president, for one, filed a brief with the district court in support of the non-registrant students.
But state schools are often even more pressed for money than private ones. "Philosophically, the University of Minnesota feels that [the requirement] is not an appropriate action for a financial aid office to be involved in," said Mary Hershberger, assistant director of financial aid. "But the funding is not adequate to make up the aid for students."
The University of California (Berkelley) is considering making up the lost aid, according to Black, its financial aid director, but "the aid would have to be of a self-help nature." The university will not replace Pell grants, he said, but "we may be able to identify some loan funds," he added.
Some observers of higher education see the new law as one more chip away at fundamental financial aid commitments, and consider that to be the most significant consequence in the long run. Federal student aid cuts in general and the rebirth at some schools of competitive scholarships have contributed -- along with the new law -- to an erosion of the need-based financial aid tradition, according to Lawrence E. Gladieux, executive director of the College Board.
"I personally feel that we're losing ground in terms of equalizing opportunity," he said. Today's financial pressures, as well as the climate of opinion, "make it easier for institutions to relinquish their responsibilities," he said.
In the meantime, though, Solomon and his amendment have established themselves as political forces to be reckoned with. An effort by Sen. Dave Durenberger, R-Minn., to repeal the law in July was defeated, 71-23.
Hearing that some schools were going to replace funds for non-registrants, Solomon in January ordered a bill drafted to punish schools that circumvent his amendment by barring all new federal contracts with them.
The bill (HR 2950) has been sent to two committees, and though Landau of the American Civil Liberties Union said it "doesn't have a chance of passing," Solomon's press secretary, John Kostas, aid the lawmaker will be watching the conduct of colleges and is "prepared to move."
Source: Dan Froomkin.