Congressional Scrutiny of Colleges and Universities: What to Expect in 2024

Following the Oct. 7, 2023, Hamas terror attacks against Israeli civilians and subsequent Israel response in Gaza, demonstrations took place on college campuses and elsewhere across the United States. While some of these events were in sympathy for the victims of the terror attacks or in protest against civilian deaths in the Israeli military response against Hamas, others included troubling antisemitic themes and support for violence, including the targeting of Jewish students with violence and intimidation. Arab students have also been targeted with violence in several cases.

Colleges and universities have been criticized across the political spectrum for their responses to these events. Following testimony by three university presidents  on Dec. 5, 2023, before the U.S. House of Representatives Committee on Education and the Workforce, led by Chairwoman Virginia Foxx (R-N.C.), colleges and universities are under increased scrutiny regarding their responses to demonstrations and harassment on campus. Due to the extensive media attention and reaction following the hearing, a wide range of congressional committees will likely involve themselves in the issue in the coming months. Explicit calls for additional investigations and hearings, as well as new legislation, are expected.

In the near term, this heightened scrutiny and relentless media coverage have led to the resignation of two of the three witnesses at the Dec. 5 hearing and increased interest in college and university policies and practices. Over the course of the coming weeks and months, continued demonstrations on college campuses are likely to lead to a new wave of congressional investigations on a broad range of matters, as detailed below.

The Oversight Power of Congress

Congressional investigations also present their own challenges, given the relative lack of rules around the process, response timelines and scope. Courts have long recognized Congress' inherent power to conduct oversight and investigations as necessary to inform Congress' legislative function under Article I of the U.S. Constitution. As an inherent power not expressly enumerated in the Constitution, the processes and rules related to congressional inquiry are generally not subject to common law protections or codified in statute. Rather, the power is implemented through the rules of the House and Senate, which include the power to compel the production of documents and testimony. More often, congressional inquiries take place through voluntary information requests (i.e., investigatory letters from members of Congress or committees), requests for voluntary testimony in public hearings or by transcribed interview, or less formal briefings. Although these voluntary requests are just that – the compulsory power of congressional subpoenas always looms in the background.

Committee chairpersons can launch these inquiries largely on their own, and committees serve as both prosecutor and judge for most of the process. There is no judicial review available to challenge a congressional investigation until and unless either body of Congress holds a party in civil or criminal contempt for noncompliance and pursues the matter in federal court, which is relatively rare. Nonetheless, as recent events have demonstrated, congressional investigations and oversight hearings carry significant risk to an institution's reputation and leadership, its donor base and potential student population. Approaching these matters requires a careful balance of related public relations risks, legislative and regulatory interests, and litigation risks.

Congressional Oversight of Colleges and Universities

Congressional oversight interest in higher education is not new. In recent years, colleges and universities have come under congressional scrutiny related to endowments and investment policies, spending on athletics, and diversity, equity and inclusion (DEI) practices. Typically, congressional oversight begins with a voluntary request for information. A committee chairperson may send letters to a number of entities requesting information or records related to the committee's jurisdiction. Should the chairperson wish to hold hearings rather than begin by collecting information, committee staff will often contact proposed witnesses several weeks in advance to confirm availability and determine whether they will agree to testify voluntarily. Though voluntary outreach constitutes the vast majority of congressional oversight activities, most committees reserve the option to compel production of documents or public or private testimony via congressional subpoena.

In light of the renewed congressional interest in higher education following campus activities related to the Oct. 7 terror attacks and the widespread media attention that followed the Dec. 5 hearing, further congressional investigations and hearings should be expected in 2024. These activities could include oversight efforts, not only by the House Committee on Education and the Workforce, but also by the House Committee on Ways and Means related to tax-exempt status and endowments, and by both the House Committee on the Judiciary and House Committee on Oversight and Accountability with regard to DEI, speech codes, matters related to China and whether rules on campus are being consistently applied, regardless of speech content and conduct. There could also be activity in the House Committee on Appropriations restricting federal funding of universities based on their failure to adhere to newly prescribed codes of conduct.

By way of example, harassment, tax-exempt status and speech on campus may be the subjects of congressional scrutiny in the following ways:

Response to Oct. 7 Terror Attacks

Following the Dec. 5 hearing in the House Committee on Education and the Workforce, and the resulting news coverage, congressional committees are likely to send additional letters and potentially hold hearings related to antisemitism, discrimination, harassment and demonstrations on campus related to the ongoing violence in the Gaza Strip and in Israel. In the near term, committees may send new information requests to leading colleges and universities on their nondiscrimination and harassment policies, disciplinary actions or the lack thereof. Though these requests are likely to come from the House Committee on Education and Workforce, other committees have jurisdictional interests in campus activity.

Endowments and Tax-Exempt Status

The House Committee on Ways and Means has jurisdiction over matters related to federal taxation, including tax-exempt status and the tax treatment of endowments. With a history of conducting congressional oversight related to these matters, Committee Chairman Jason Smith (R-Mo.) may be expected to conduct oversight related to large college and university endowments. Since the Senate Finance Committee's 2016 inquiry related to college endowments, the largest college endowments in the U.S. have increased by nearly $20 billion. Although the growth does not significantly outpace general rates of return, the overall numbers stand out to policymakers given the tax advantages for higher education, as well as growing tuition costs, alleged China-related investments, Israeli disinvestment campaigns and perceived political bias on college campuses. Accordingly, they are a potential target for legislation, and associated revenue could be made available to offset other educational government financing.

Codes of Student Conduct, Speech Codes and Related Matters

In recent years, free speech advocates and other interest groups have criticized speech codes on college campuses and the perceived bias in the application of codes to student conduct. Critics cite examples of students "shouting down" speakers and speakers being blocked from campus events based on ideological positions. These issues are getting renewed attention in light of responses to the Gaza conflict.

Given widespread Republican interest and jurisdictional claims over these issues across several committees, there could be significant oversight interest in these matters in 2024. Relevant congressional committees of interest will include the House committees on Education and Workforce under Chairwoman Foxx, Ways and Means under Chairman Smith, Judiciary under Chairman Jim Jordan (R-Ohio), and Oversight and Accountability under Chairman James Comer (R-Ky.).

Preparing for the Coming Scrutiny

Congressional oversight is not a challenge to be viewed in a silo but should be properly understood in context with a range of interests, including parallel litigation, legislative and regulatory efforts, and risk and reputation management communication strategy and related media relations. Though congressional oversight will be a challenge for colleges and universities in 2024, Congress will not be the only source of scrutiny. Trustees, donors, alumni generally and student bodies are also likely to present unique challenges to college and university leadership. In addition to these challenges, the U.S. Department of Education’s Office for Civil Rights has opened a number of investigations and continues to take action addressing discrimination and harassment on college campuses and K-12 schools following the Oct. 7 attacks, including investigations of specific universities. Several senators have also requested additional action by the U.S. Department of Homeland Security and FBI.

With much at stake for higher education institutions and their leadership, mitigating additional risk and reputation protection are paramount. Institutions and their leaders must be armed with effective messaging that will resonate in response to attacks from critics. It may be prudent to develop these responses with assistance from legal counsel in an environment that maximizes attorney-client privilege. Higher education institutions under the threat of investigation or litigation may benefit from a seasoned political management and media relations team that has proven experience working with the institution's legal and government relations team in risk and reputation management objectives.

Meeting these challenges requires a team with broad experience counseling clients through such investigations, deep knowledge of education law and policy, skilled lobbying abilities and extensive experience in crisis communication and media engagement.

Holland & Knight Capabilities

Holland & Knight's attorneys, public policy professionals and crisis management advisors have deep insight into congressional investigations strategy, a thorough understanding of the legal and policy issues facing colleges and universities, and skill in high-stakes communications and witness preparation. These individuals have counseled colleges and universities through investigations in the House and Senate, and prepared top executives for testimony before Congress and other settings.

Furthermore, because federal law prohibits institutions from discriminating or retaliating against persons based on their religion, ethnicity or national origin, Holland & Knight's Education Team can assist institutions in complying with those nondiscrimination laws.

For more information on these topics and to seek legal advice, please contact the authors or members of Holland & Knight's teams on Congressional Investigations, Education, Public Policy & Regulation, and Risk and Crisis Management.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.