The Republican-sponsored PROSPER Act seeks to reauthorize and amend the 1965 Higher Education Act. But while proponents say the bill will fix the “broken” postsecondary education system and prepare students for jobs of the future, some critics say it will open the floodgates to anti-gay discrimination.
The bill, formally titled the “Promoting Real Opportunity, Success, and Prosperity Through Education Reform Act,” passed a committee vote in December down party lines and is now making its way toward a vote in the House of Representatives. If passed, it would undo Obama-era regulations on institutions of higher education, particularly for-profit schools.
"There are a number of provisions that would result in disparate treatment of LGBTQ students and potentially reduce protections for them in terms of nondiscrimination and assault."
Rep. Virginia Foxx, Republican of North Carolina and chair of the House Committee on Education and the Workforce, and Rep. Brett Guthrie, Republican of Kentucky and chair of the Higher Education and Workforce Development Subcommittee, called the PROSPER Act “higher education’s long overdue reform.”
“With six million unfilled jobs and over a trillion dollars in student debt, simply reauthorizing the Higher Education Act will help no one,” they said in a joint statement. “A hard truth that students, families, and institutions must face is that the promise of a postsecondary education is broken. We need a higher education system that is designed to meet the needs of today’s students and has the flexibility to innovate for tomorrow’s workforce opportunities.”
Several aspects of the nearly 600-page bill have drawn criticism from lesbian, gay, bisexual, transgender and queer advocates. David Stacy, director of government affairs at the Human Rights Campaign, a national LGBTQ advocacy group, said his organization is concerned the bill would “make LGBTQ students more vulnerable.”
“There are a number of provisions that would result in disparate treatment of LGBTQ students and potentially reduce protections for them in terms of nondiscrimination and assault, and allow discrimination in student organizations and programs,” Stacy said.
The PROSPER Act mentions the words “religious” or “religion” 20 times, and its advocacy for religious freedom aligns with a number of recent actions taken by the Trump administration. These actions include an executive order issued in May titled “Promoting Free Speech and Religious Liberty; guidance issued in October by Attorney General Jeff Sessions to all federal agencies and departments outlining principles of religious liberty that some opponents have called a “license to discriminate”; and last month’s creation of a new division at the Department of Health and Human Services dedicated to the defense of religious freedom in the health care.
Stacy said one section of the bill that addresses religious beliefs is modeled after the First Amendment Defense Act, a piece of legislation that would allow businesses to deny service to potential customers on the grounds of religious freedom. In the PROSPER Act, under a section titled “Ensuring Equal Treatment By Governmental Entities, it states “...no government entity shall take any adverse action against an institution of higher education that receives funding under title IV, if such adverse action … has the effect of prohibiting or penalizing the institution for acts or omissions by the institution that are in furtherance of its religious mission or are related to the religious affiliation of the institution.”
Stacy said such a provision “would allow schools to violate state and local nondiscrimination protections” and could, for example, permit Christian universities to forbid same-sex dating or the cohabitation of same-sex spouses without repercussions — such as losing their accreditation or access to federal funding under Title IV of the Higher Education Act.
The bill also addresses the issue of free speech on campuses. In a section titled Free Speech Protections, it states: “No public institution of higher education directly or indirectly receiving financial assistance under this Act should limit religious expression, free expression, or any other rights provided under the First Amendment.”
Stacey said he is concerned with the vagueness of the language of this provision. “We are not sure what it will mean,” he said, but “it clearly favors religious speech over other types of speech.”
The bill further stipulates “free speech zones and restrictive speech codes are inherently at odds with the freedom of speech guaranteed by the First Amendment of the Constitution; and … no public institution of higher education directly or indirectly receiving financial assistance under this Act should restrict the speech of such institution’s students through such zones or codes.”
Jenny Pizer, law and policy director at Lambda Legal, told NBC News this provision fails to recognize that colleges and universities are already grappling with the “best way to maintain an environment open to diverse opinions” while at the same time protecting the wellbeing of all students on campus.
“It’s important that minority viewpoints not be silenced — that’s been true of the LGBT movement,” Pizer said. “At the same time, when speakers are deliberate provocateurs whose speech is about disparaging others, that can easily lead to bullying and targeting and [incite] violence thereafter.”
FREEDOM OF ASSOCIATION
Another provision within the PROSPER Act involves membership and leadership restrictions for campus organizations. The bill threatens to withhold federal funding from any institution that “denies to a religious student organization any right, benefit, or privilege that is generally afforded to other student organizations at the institution (including full access to the facilities of the institution and official recognition of the organization by the institution) because of the religious beliefs, practices, speech, leadership and membership standards, or standards of conduct of the religious student organization.”
Stacy said this provision has the ability to create a special exemption for religious student groups that could “undermine a school’s ability to enforce their own nondiscrimination policies.”
Last month, for example, a federal judge ruled in favor of a student organization, Business Leaders in Christ (BLinC), that sued the University of Iowa after it revoked the group’s campus registration for denying a leadership position to a gay student. BLinC claimed — and the judge agreed — that it was unfairly singled out by the university because of its religious convictions.
Pizer criticized with the judge’s ruling, arguing, “A school should be able to say, ‘We are only giving official recognition and support to groups that are not discriminatory.’”
Pizer said organizations like BLinC are trying to “have it both ways.” Namely, she said, they want to be able to exclude certain students while still receiving university (and taxpayer) funds while doing so.
“That’s what the extreme right is pushing for here,” she added.
In discussing the judge’s ruling in the BLinC case, Pizer mentioned the 2011 Supreme Court case Christian Legal Society v. Martinez, which she said seems at odds with BLinC decision. In the 2011 case, the high court ruled that universities may require student groups to accept all students — regardless of their “status or beliefs” — in order to maintain official university recognition.
Pizer said campus anti-discrimination protections, like the one the University of Iowa tried to enforce, are a particularly important way to allow all students to participate in campus life.
“That's when lots of young people are coming into their own,” she said, “and figuring out who they are.”
SEXUAL ASSAULT AND HARASSMENT
In addition to his concerns that the PROSPER Act would open the floodgates to anti-gay discrimination, Stacy said the bill could also undercut existing protections for survivors of sexual violence on campus.
He noted the bill advocates for allowing educational institutions to determine their own standards of evidence during disciplinary proceedings related to sexual assault. These standards, the bill states, may take into account “the institution's culture, history, and mission,” as well as “the values reflected in its student code of conduct.”
Stacey speculated this could lead to institutions applying strict criminal standards, such as “beyond a reasonable doubt,” to their own internal disciplinary proceedings. He said the “preponderance of evidence” standard is more appropriate for proceedings involving sexual assault allegations, because the stricter standards “tip the scale in favor” of the accused.
Stacy said lesbian, gay, bisexual, transgender and queer students could be disproportionately impacted by this provision.
“LGBTQ people are more susceptible to sexual assault and more reluctant to come forward,” he said. “This is going to result in these students coming forward less and being less protected on their campuses.”
Both Stacey and Pizer said the PROSPER Act is likely to pass in the House of Representatives. “The real question,” Pizer said, “is whether it can get through the Senate.”
Neither Rep. Foxx nor Rep. Guthrie, the PROSPER Act’s cosponsors, responded to NBC News’ requests for comment.