Higher Education Renaissance
Peter Lake is a Professor of Law who has never shied away from addressing the controversial topics that impact higher education with his trademark candid, unique, and often humorous approach. Eric Seaborg has created this podcast series to capture the insight of Peter Lake on the status of higher education. Eric will have Peter analyzing the key issues challenging the industry of post-secondary education and the future direction of our institutions across the nation.
Higher Education Renaissance
The Political Power Shift in Higher Education
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Welcome to the new era where the law and higher education are having a wild dance. In this episode, Peter Lake explores why higher education can't avoid the political spotlight. As education becomes more important for the country, listen to how the Department of Education might change and how that could affect civil rights, state control, and other important issues. With a Republican majority up on Capitol Hill, Peter provides his insight on how this could affect K-12 education, student loans, and the whole educational system.
The discussion involves why the Supreme Court and the new White House administration might tangle over enforcement. Also, there is a likelihood that private institutions will push the boundaries on acceptable DEI initiatives, which could cost them federal money. And let's not forget how immigration policies may affect international students and the bigger social and economic factors at play. This episode is packed with insights into academic freedom, free speech, and the legal challenges that universities face in today’s changing culture. All this as a societal shift may impact the value of a degree. We hope you’ll find the analysis helpful as higher education heads toward 2025 under the political microscope.
We used to be I won't say an afterthought, but you wouldn't have thought of higher education as a priority national issue in terms of motivating people. But it's a new ballgame.
Eric (Gingy):From the MC1R Group. This is Higher Education Renaissance with Peter Lake.
Peter:Hey Ging, what's up, man?
Peter:How are you doing my friend,
Peter:Well, I'm always bitter when I see you so let's talk fun.
Peter:Let's talk fun stuff. Let's talk election.
Peter:Republicans will control the three branches. Obviously, a majority of conservatives on the Supreme Court not necessarily Trump conservatives, but nonetheless conservatives on the Supreme Court could be an interesting time. I do think the split in the House is so narrow that the common wisdom is that it's still going to be very difficult for everything to move through, and you already saw a little bump in the road with some of the initial appointments for cabinet level activity. It signals that you know it may not be 100% of one mind throughout both houses of Congress for every issue that comes up, so we'll have to see what happens. I don't know that we'll have the same level of gridlock that we've had, but Are you pretty much in agreement that education was pretty instrumental in getting him elected?
Peter:There's no question that higher education has now elevated to a top national issue and I think this is something we've been talking about for really the beginning of our relationship is. We used to be, I won't say, an afterthought, but you wouldn't have thought of higher education as a priority national issue in terms of motivating people. But it's a new ballgame, there's no question. The rhetoric is out there, the energy's out there. I even noticed on the local news now change. You know. For example, last night my local news channel did a story on student college mental health issues and I thought back in 2000, when I first broke the issue, I couldn't have gotten 10 people to take a phone call on that. You know, they just no way. Were they, you would get this out to the public in general. But people are talking about it and, of course, the constant dialogue right now is what will happen with the department of that. You know, blah, blah blah. Department of ed, blah, blah blah. And that should be a fascinating ride.
Eric (Gingy):Let's start off with Lynn and McMahon. Talk to me a little bit about the impressions there right now.
Peter:I don't mean to deflect away, but when Matt Gaetz was put up, all of us were thinking why wasn't it Pam Bondi? Because we just assumed it was going to be Pam, and then it was Hard to say exactly what was going on there. But if the Department of Education is dismantled, reorganized, fundamentally changed, a lot of civil rights enforcement may end up in justice, and so higher education really needs to pay attention to Pam Bondi and her agenda.
Eric (Gingy):So what's the caution here, Peter?
Peter:Remember, justice has been active on Title VI and Title IX. They often defer to voluntary resolution with the Department of Ed, but if that process gets undermined I imagine there'll be pressure on Justice to move towards various issues and she'll be front and center on that.
Eric (Gingy):Well, if they dismantle, which you know, who knows, what does it really mean from your perspective that if hypothetically that would happen, education kind of gets pieced apart and it goes more towards the state? Is that where you get in the Department of Justice to come in and resolve conflicts and things of that nature?
Peter:Well, I think they could get caught up in a lot of the issues that would be involved in decentralizing or mentioning the Department of Ed in various ways. And the interesting thing is, you know there is the possibility of the complete elimination of the department. That's no small task because they have to get through Congress and you know again, there's enough of a borderline energy, particularly in the House, that it isn't clear to most of us that a complete dismantling will go forward. But my instinct is that the focus that they really are on a couple of things would be K to 12.
Eric (Gingy):Okay.
Peter:You know, I think the when you read the rhetoric for the new bill that was introduced by the Senator from South Dakota, a lot of emphasis on education returns to the states. You know the K to 12 period. We all remember a teacher and I think that's been a long standing conversation way back even to the Reagan era, about a preference to have K to 12 managed more at a state level. The other thing for us I think in higher ed that's probably more directly connected is loan servicing and the loan, because the loan industry is huge and there's lots of money associated with it, lots of politics. But I'll say this, gents, you know, just my instinct is that there'll be people at the edge of Congress in their districts who are going to think what are my constituents going to think about this? And then they're also going to think you know, midterms are coming quickly again. It's just two years. What's that going to mean for my tenure in the House if I am to one way or another on this?
Peter:And you know, unless there's an amendment to the Constitution, president-elect Trump will be a lame duck, president, this will be the last term. So people are already thinking political futures beyond what just occurred. And you know what's the read. Is there an angry American public that will just throw anybody out if they don't get what they want? So they're not. Are they deeply loyal to these things? Or because I'll tell you what if people can't get their loans serviced, they can't get their kids to go to the schools they want to go to, they're going to be calling their local Congress people and that will generate. You know, when you start playing around with people's kids and money in school, it draws political energy.
Eric (Gingy):So they already have the difficulty of fighting the value issue in higher ed.
Peter:I would say the whole FAFSA thing this year was one of the great debacles. And again, I don't mean to throw rocks at the Department of Ed and I'm not but the perception of it was it was sort of a classic government attempt to streamline that went exactly the opposite direction. It became a barrier, it was complicated, it didn't happen on time and so it just, you know, negative, negative, negative about the department and I think it's, you know it's throwing logs on the fire of the idea of returning to private loan servicing, which had gone out the window when USA Group blew up many years back.
Peter:Oh yeah, I remember that, yeah, so, but I think that think that's back on the table. So interesting times, but I do think at a certain level, I think there were a number of voters that this was enough for them to tip the tables to say this is not working. We need something that can get the money to our kids so they can go to college. And I don't mean to double back to McMahon, but the one comment I had there was a lot of people were floating In fact Fox News floated it Justice as Department of Ed leader, moms for commerce, and this is more of like a small business kind of person, you know with the business administration, and so it seems like with that pick, to some extent, the president-elect Trump is moving towards someone he thinks could bring an energy of the small business entrepreneur who's been very successful.
Peter:You see this a little bit with Elon Musk chatter. So I think that's what we're likely to see is someone who's going to come in and be more of an efficiency person. I think the you know the culture stuff certainly will factor into it, but I think that would be what I would be suspecting we're looking at as someone that wants to reorganize. Probably the first thing she'll do is look at the staff she's got and see who she wants to keep and who she doesn't, and who she has to keep because of federal employment rules. But I think there'll be a big shakeup in personnel at the department.
Eric (Gingy):Approximately 4,000 employees at DOE $80 billion budget.
Peter:So you know Interesting times ahead and again, you know, one theory is DOE completely disappears? That could happen. I think the more likely scenario is retooling of functions and yeah, I think there'll be people sitting in certain districts saying my constituents will go bananas if things don't. They can't get the money and I won't get my seat back in two years or four years, and so they'll be watching that one like a hawk because, unless I completely miss something, I think this election cycle was a lot about money.
Eric (Gingy):It seems to be, and it seems like the first hundred days of the first year is going to be the make it or break it. So if we push the foundational stuff aside a little bit, what's the likelihood in Title IX of things are going to be drastically altering what's in place right now?
Peter:I mean, I see a couple of big moments coming Title IX, title VI and DEI. I think we're going to be watching all of these like a hawk and see some interesting developments. I think, with Title IX, the Biden regulations, the 24 are on life support right now at colleges and additional places and a permanent injunction I think is very likely. And then in comes the Trump administration and I just don't see Secretary McMahon enforcing the 2024 regulations. What's interesting to me and I've been talking to people about this for years is that if you did get a shift back to a Republican administration, particularly a reelection of President Trump, there could be an energy coming from the Department of Ed itself saying that you never should have followed the 24 regulations in the first place and that you were in violation of law by not sticking to the 2020, even if you were permitted or, in some cases, potentially required by law to start following those. And I'd be on the watch out for 2020 enforcement potentially.
Peter:Now, again, I don't necessarily see Secretary McPain going that route, because if you want to dismantle the Department of Ed, you don't necessarily want to weaponize it at the same time, but this is something I think that the Trump administration is going to be thinking about is hey, the Department of Ed could be, you know, a source of weaponization of our policies, and why abolish it? Why take a weapon system out Now? That could transfer over to Pambandi's office in the AG, but you know they're going to have their hands full with plenty of issues to deal with injustice. So one wonders you know what will happen with that. But I see a rollback to 2020 regulations almost immediately in some way. And then the question is going to be will the court system uphold the 2020 regulations under Loper Bright? I'm convinced that the next thing that will happen I could see it even happening in a place like California, where an institution might say hey, you forced us to go back to 2020. Decision, we can now challenge that. And how do you get a college court system out of a handful of words in Title IX, and it's a pretty powerful argument under this. And so watch an interesting relationship with the Supreme Court potentially line up over the future of even the 2020 regulations.
Peter:I'll tell you where my focus is is Chief Justice Roberts, because I see a showdown coming here. I mean now that I look back at the summer of 24, the Supreme Court saying federal power. We're going to cut right down to the court. You can't run the court systems that you did administratively. That's the SEC case. Anybody can complain about a regulation at any time. That's corner post and Loper Bright. We, the judiciary, have the last say on regulatory power, not you we do Now. I don't see President Trump liking that very much, and I could see head-butting between Roberts and Trump over who has ultimate constitutional authority. You may have caught something in the wind. Vance floated this idea that well, we might not necessarily follow judicial mandates.
Eric (Gingy):Oh boy.
Peter:You know. And so now we're putting Marbury and Madison at play, which was center of the opinion in the Loper-Bright case. So watch for some interesting gamesmanship here, as the Supreme Court has set the stage to limit the authority of an imperial presidency. You know, you sort of wonder in the back of your head did the Supreme Court, led by Roberts, imagine where we're headed, that the American populism could move towards a more authoritarian presidency and that the judiciary then will step up to be the no, no, no, and I know this from the last tranche of Trump judicial appointees. A lot of people were rushed through the process and they were not card-carrying MAGA bearers necessarily. I think there are a lot of people who aren't necessarily deep red. They're shades of pink and I think you'll notice that as things start percolating in the judiciary, you'll see some, you know, deep red judges sort of push one way but not sure where the middle is in the judiciary. I see a showdown between the Supreme Court and the White House. We'll have to see what comes.
Peter:With respect to DEI, I'm fully expecting a move almost immediately from the Trump administration to return what happened before with executive order and ban DEI work and any federally funded activity. And here's the shocker is that for those private institutions that are clinging on to DEI work in the face of state mandates, that tell public institutions they can't watch out, because that you could be told even as a private institution you're taking federal money, you can't do any over the work and I'm I'm expecting that change. I mean, I don't even think that's a far likelihood, I think it's coming um and that's going to be quite a shock because a lot of schools have tried to sort of dodge the DEI, anti-dei stuff and they call it something else, and I think they're going to see a hunt for people that are doing that work and it could get weaponized all the way to the Justice Department.
Eric (Gingy):So, Peter, what is going to continue on down the road for higher education, in particular the next couple years?
Peter:I see Title VI and free speech having a very interesting moment over the next couple of years which include, of course, the judiciary in there at how things have progressed up to this point. You see the Department of Education issuing a series of resolution agreements with a particular campus saying you've got to address a hostile environment. And then you've got the you know very invective report from the House Committee, plus some you know visits to Congress by leaders on what they are doing or not doing. Having a sense of the Trump administration and the people that we're looking at you know McMahon, bondi, trump I see a potential for a much more heavy handed response to Title VI. In other words, I could see the Department of Justice launching a case against the school to defund it. The nuclear option under Title IV and I'm just going to say it and I'll tell you it's a little spooky to see it, but it wouldn't surprise me if there are a lot of mass protests again to the sign. You know where we saw in the spring and they are down quite a bit the fall.
Peter:New York Times reported on that today. I think the presence of military paramilitary forces on campus is not out of the question. I don't. I wouldn. Campus is not out of the question. I don't. I wouldn't necessarily take it off the table. I mean you remember how President Trump cleared the path to the church across the street from the White House? Yeah, I mean, it's not out of the question that we could see something. And that gives me pause. Back to Kent State. You mean Again, there's no indication of that per se, but I'm going to be watching to see what's there. But I don't think you're going to get the tongue lashing approach that we saw under the Biden administration. You know, bad, bad kids.
Eric (Gingy):Yeah, or let it go on for so long and let the media make a circus out of it.
Peter:And on the sidelines of this is people keep asking the Supreme Court to take a case that relates to bias response teams on campus and I'll be curious what the Supreme Court does with that, because they know and I think they may have deliberately waited to see how everything shakes out this year before they jump in on a final resolution of a split in the circuits over just how much bias response work you can do.
Eric (Gingy):Do you think the spring's going to be more volatile than it was last spring?
Peter:Well, there's an energy in the air right now, but because the popular vote tipped towards Trump, you get this feeling that a little bit of the gas is taken out of the balloon, that people realize they need to think about their strategy, about how they will confront the fact, because this isn't a majority that happens to be governed by an electoral fluke of some kind. Most Americans have tipped in this direction in a lot of areas that have shown support for this. What will happen if we do? And I've got to believe that some of the groups that are protesting right now are getting counsel that if you push this hard, you might get an even harder pushback than you've ever seen. You know, this could go beyond college crackdowns. This could go to a different level. And are you prepared for that? And what would that look like? And is it, you know, a battle that you can win in the court of public opinion? So we'll have to see.
Eric (Gingy):Let's talk speech a little bit. There you are. You're a faculty member and the worry's always been the last four years or so about free speech, what's permittable, the administration having to deal with that, the administration on campus. What should we do? Should we do nothing? Should we be heavy-handed? Do you think the administration on campuses are going to really have a rough time this spring or do you think they're going to just kind of sit on their hands for a little while and see what unfolds with their student population, with their faculty?
Eric (Gingy):That and college isn't for everybody, but colleges are still a business and they're still a part of a community business and a state business and their necessity, whether it's intellectual or the financial benefits they bring it's intellectual or the financial benefits they bring. When you look at things like speech, which is a backbone of this business and I just don't know which way to go with this kind of thing, but you're a person that sits right in the foundation of this Speech is just a thing that just makes you crawl a little bit. What is really right, what's not right, what's going to happen? Because we can't do gray areas anymore. We're having trouble with the gray areas and speech was always a gray area, but now they want to make it go one way or the other. What's going to happen with freedom of speech?
Peter:This is like six podcasts rolled into one. I'll take a shot at some of it, but I'd like to keep having this conversation. I mean it goes back to something we've talked about for a long time is higher education has had to transition from a status-based business. You know, we're higher ed, we're different, we're better, we're for the public good. We're now thrust into identity politics and it's unfamiliar territory, particularly, I think, in light of the fact that at one time, people really bought into this marketplace of ideas concept. You know that we're the marketplace of ideas.
Peter:Well, guess what? You know that's tough to manage. When you're selling everything to everybody, it doesn't always mix well. You know, instead of having a bizarre, it gets a little bizarre with an eye for people to manage it, and I think that we are caught in some fundamental inconsistencies and expectations that are going to be very difficult to detangle, and I think there's some gray space in both constitutional and political thinking about what universities should be doing. That'll continue to vex the leaders in the field for at least another generation.
Peter:I don't think this is going to resolve itself immediately, but one thing I will say, genji, is that the Obama idea of college for everybody is a dead duck. College is for some people, but job training is for a lot of people and that's higher ed. And I think we've really shifted in that mentality to sort of move away from any political figure, major political figure selling the idea of universal college. It's more universal higher learning but some of it's really training which is a form of higher learning. But there you go, and I think that's a big shift in thinking away from aspirations that were just around the corner not long ago.
Peter:I think one of the things that's really problematic is the extent to which the law permits an institution of higher education to corral its employees, particularly its academic employees, in their speech, whether it's academic freedom or First Amendment rights. And I've got a session at my conference coming up, it's going to be one of the great ones on the difference between free expression rights and academic freedom. And there's a tension there, you know. I can locate it to a specific Supreme Court case, garcetti and the Garcetti line of, you know, forcing employees to follow the speech of their institution when they're working in the context of their official capacities.
Eric (Gingy):In 2006, the Supreme Court ruled in a 5-4 decision that public employees do not speak as citizens when making statements pursuant to their official duties. Therefore, such speech is not protected under the First Amendment. The majority opinion emphasized that restricting speech related to job duties does not prevent employees from engaging in broader public debate, but ensures employers can effectively manage their operations. Ensures employers can effectively manage their operations. The dissenting opinions raise concerns about the implications for whistleblowing and academic freedom. They argue that public employees addressing matters of significant public concern should retain some First Amendment protections, especially when their roles provide them with unique insights into systematic issues.
Peter:I think a lot of that's frankly still unresolved, and I think you're going to see a lot of fighting over how much latitude does someone have outside of what they're told to say or not, to say public or private, religious or not. So we'll have to see how that goes. And then the other thing that I think we perpetually struggle with is you hear people talk about freedom of speech, but there's still a strong tendency to react to viewpoints that we don't like. You know, that's been sort of the gravamen of a lot of the discussion after October 7th is are people giving preference to one viewpoint or another while pretending to be neutral? And this goes, I think, even deeper to something that you and I have talked about before, that a large number of Americans really take the position contra the Supreme Court that hate speech directed at race and national origin shouldn't be protected the way the Supreme Court, that hate speech directed at race and national origin shouldn't be protected the way the Supreme Court has protected it. It puts colleges in a hopeless position because, on the one hand, the expectation is you will move towards this and pick a side or protect a certain viewpoint, and yet the law is very, very difficult to manage in that way. This is where I think the bias response cases that the Supreme Court might take could be very interesting to see what they say about that. So we're kind of caught in the middle.
Peter:And then in all of it there's been this you know, not surprising, I think. When you're born into the world of identity, you know there are two places that teenagers go is, you know, be a rebel without a cause, be James Dean, get a sports car, run around, big splash, or do what a lot of teenagers do and disappear into your technology and become neutral and invisible. Too much drama. But the question is can higher education institutions sustain their base by playing the neutrality card? And I go back and forth on this, even in my own head, as to how successful will the Calvin approach be for this generation?
Eric (Gingy):The Calvin approach in discussing higher education often refers to a framework or a perspective rooted in the theological and philosophical principles of John Calvin, particularly as they relate to a Christian worldwide view. It integrates faith and learning, emphasizing the cultural mandate, calling and holistic development. It encourages critical engagement with culture commitment to justice and community-based learning.
Peter:In some ways, I have my doubts that that will be sustainable as much as I think a lot of people feel it's a safe space right now, you know, can you really be Switzerland? We'll have to see.
Eric (Gingy):What's the value of the diploma?
Peter:Let me get real personal about this. You know I was a kid in the 60s. Lawyers were cool and were looked up to as high standing members of society. Higher education was a privileged rank, high metric, and I went to Harvard twice, which was considered the greatest institution you could get a degree from. And I sit here today and I realize I'm a lunatic and a Marxist. Harvard has been called specifically out and both professions that I work in have come into a social view. And I have to admit I sit and I look at the wall in my office and I think did I make a generational error? Did I go down on every number at the roulette table that came up wrong? Because I've ended up exactly the opposite of where I would have expected things to be.
Eric (Gingy):Yeah, it's where the cultures and the generations guide us at the time, which is interesting. It's funny how we take things so seriously speech and yet in our entertainment it still can float. Whatever makes a buck makes a buck, yeah. So when you say picking your path in life, my feeling is you worked hard and picked the path based on the culture and the generation dictate as being the aspirations of all of us.
Peter:Yeah, Now I keep hearing Bruce Springsteen's the River in my head.
Eric (Gingy):But everything is in this cycle, peter. That's what's so fascinating about talking about speech. What about immigration, peter Effect, that first year coming in with the Trump and the campus population and everything else?
Peter:It already has Students going into deans and saying I'm afraid that I'm going to be deported or my family members will be and or you know people I'm connected to otherwise will be. And so there's this is already happening. I mean, you know, in all likelihood it'll have significant impact on international student programs because people will think I'm not sure I want to go there. Last time, I mean, australia was growing. The last time, when Trump was elected, because their numbers went up, a lot of people deviated there. I don't know if we'll see the same phenomenons, but it does promise to have significant impact. And then, of course, it could have impact on the labor force and other activities as well. So I hear you know, even down in Texas people are getting nervous about the construction industry.
Peter:Of course that impacts college campuses, because if you can't build or fix things quickly, then it has an impact. So we'll have to see exactly what takes place with all of this, but the energy's already started.
Eric (Gingy):Going into the new year, into the spring, as far as institutions go, are they just going to be business as usual right now, or do you really think they're going to be taking a hard look before January of what do we need to really get in there and make sure we're not doing that's going to target us?
Peter:I think there are so many points of choice about what could happen next year. It's almost overwhelming. I've noticed a lot of conversation about Title IX, title VI, a little bit less around DEI, at least visibly. But I think it's all going to hit the table and I think we're going to find higher education reacting a lot to what goes on. You know, for example, one thing that the graduate schools are going to be nervous about is plus loans and funding mechanisms for graduate school, because a lot of enrollment in graduate programs is dependent on some of the esoteric funding mechanisms and if those get trimmed and those are easy targets, that could cause enrollment pitches. And then you know I'm in law school. So ABA is the accreditor you know has overtly taken a stand on having essentially DEI requirements for law schools. It's clearly in there and I am definitely anticipating a showdown between this administration and ABA as an accreditor and that could be for law schools. That could be revolutionary in terms of what could potentially occur. We'll see what happens, but there's definitely a showdown coming in that sector.
Eric (Gingy):And the accreditation area of higher ed probably concerned also.
Peter:I think everybody's very aware that the traditional accreditation model could be a dinosaur. I suspect it will be actually.
Eric (Gingy):Yeah, we don't touch much on curriculum right now. It's just so many of these bigger foundational things.
Peter:No, I mean curriculum's coming, because I think conservative forces would like to see a core curriculum that focuses on particular topics and in some cases even particular viewpoints. And you've seen this in the Florida experiment and I've said all along that in many ways Florida was the litmus test for what's achievable and potentially successful in reorganizing public university models. So we shall see.
Eric (Gingy):Boy. Since we've been doing this podcast for almost two years, things have really, really gotten exciting.
Peter:I have a feeling after January you and I may be talking on a biweekly basis or shorter, because I think bombshell moments may occur.
Eric (Gingy):You really have to be on your toes in higher ed now.
Peter:It's a new world and I think, as we go towards the end of the year and I have a birthday coming up, this is the time, maybe one of the greatest moments of challenge in the history of higher ed you know, our podcast is Renaissance and there is a day after this and we will find what's real positive for everybody, not just the people who happen to be in charge at any particular four-year moment, but what are some of the grander lessons? Task, which was to retool its approach to Title IX enforcement, and the one thing that was clear in two sets of regulations with two diametrically opposed administrations is that most people were unhappy about it. And so we've got to admit we're back to the drawing board on sexual violence on campus and harassment and what that looks like in terms of combating it, and this, I think, was an important social experiment to see what works and what doesn't, and I suspect that we will come out of this on a better side. But it isn't necessarily going to be easy or quick. But no, renaissance is.
Eric (Gingy):No, but I agree. I agree Everything you said. It's like when we used to be able to walk right on the airplanes, remember? And then after 9-11, oh, we've got all this restriction. Well, now it's commonplace. You expect that, you know, it's part of your way of life. It's the same thing.
Peter:Everyone out there. Thank you for listening to me babble about higher ed.
Eric (Gingy):For people listening internationally, it can only be a benefit to hear what you know the inside thinking is, rather than what they're reading. So thank you for that and for the people that listen from afar.
Peter:You bet. All right, my friend.
Eric (Gingy):Take care, Peter.
Peter:I'll see you soon. Take care, bye-bye.
Eric (Gingy):Bye. Higher Education Renaissance is a product of the MC1R Group with unscripted content by Professor Peter Lake and myself, Eric Seaborg, edited and distributed by Gingy Pop Production through Buzzsprout. Be sure to check out our website, including past episodes at higheredrenaissancebuzzsproutcom. We welcome your comments at ericseaborg at gmailcom and thanks for listening. Thank you.
