The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Academic Tuition and Student Loan Relief
My thoughts on this as a policy issue
There is an important issue that reached the Supreme Court in Biden v. Nebraska, 600 U.S. 477 (2023). President Biden and his Vice President, Kamala Harris, are on the record as favoring the use of presidential power to enact student loan relief without an appropriation by Congress. This is both a bad idea and is unlawful, as the Supreme Court explained in Biden v. Nebraska last year. Since then, President Biden has continued his unlawful attempts to spend money without an appropriation from Congress, an appropriation that is required under Article I, Section 9 of the Constitution.
It is worthwhile, however, to consider the merits of this as a policy idea. Retroactive relief from student loans seems unfair to those who have been paying student loan debt or who never borrowed money in the first place. There are some, however, like Sen. Bernie Sanders, who are on the record as believing that federal money ought to be used to pay for anyone's college tuition. Is this a good idea?
It is certainly true that college tuition, which costs more than $100,000 a year, is unaffordable by 99% of the American people. I am acutely aware of this, having paid for my four children's college tuition myself. Should taxpayers play a role in financing a college education? This is an important public policy question, which will certainly come up in the next two years.
As a law professor for the last 34 years, I have a special window into understanding the forces that are driving historically unprecedented tuition increases in academia. I believe that one of the main drivers of tuition increases is not faculty salaries, which have been stagnant, but instead increases in the size of university bureaucracies. These increases in my view are often harmful to the academic mission. They also impose an insurmountable burden on the American people.
Faculty members are powerless in addressing this problem because tuition is set by University administrators and not by a vote of the faculty. I think alumni and faculty are often unaware of how unaffordable tuition has become. They are also unable to do anything about it. There thus exists a huge problem with record high college tuitions and with essentially no market forces constraining it.
I have, quite reluctantly, come to the conclusion that the unaffordability of college to 99% of the American people must be addressed in the same way as was done in the 1880's for monopoly railroad rates when the Interstate Commerce Commission (ICC) was created. I regrettably see no way of addressing the roots of this problem except by creating a new federal regulatory commission with the power to regulate any college tuition increase above the national rate of inflation.
I do not like the idea of empowering the government in this way over academia, but I see no other way out of a situation that has become a crisis. The government already plays a huge role in academic life as a result of many federal statutes, and as a result of the role the Department of Education plays. The creation of a federal agency with the power to regulate tuition increases beyond the rate of inflation will not undermine academic freedom anymore than existing federal laws have already done.
Such a commission should consist of two members from both political parties plus a chair of the president's party who serve for five year terms. Commissioners should serve at will, and the Commission must be a part of the executive branch. Commissioners should be nominated by the president subject to confirmation by the Senate. Presidents and senators should be admonished to appoint people of judgment and impartiality to this commission. There should be a requirement that commissioners be at least forty years old and that they have knowledge about the forces that are driving tuition increases.
One of many problems with Sen. Bernie Sanders' idea of making federal taxpayers responsible for paying all college tuition is that it addresses none of the root problems that are driving increases in college tuition, which have nothing to do with faculty salaries. My proposal at least addresses the root causes of the huge increases in college tuition that have occurred during the last 34 years.
Putting federal taxpayers on the hook for paying for increases in university bureaucracies will only cause the problem to get worse. Universities and colleges would respond to such a federal subsidy by doubling the size of university bureaucracies, which would aggravate the underlying problem. Such a reaction would be more of a threat to academic freedom than would be the creation of an ICC-like federal regulatory commission.
