“U.S. taxpayers have long supported U.S. students pursuing higher education, and this rule simply ensures the continuity of that well-established policy,” DeVos said in a statement Thursday. “Today’s action helps erase any uncertainty some institutions have expressed and helps make sure we can support America’s students facing the greatest needs.”
The regulation arrives as DeVos is fending off separate lawsuits from the California community college system and Washington state over the eligibility restrictions. Decisions in those cases could upend the new rule. A federal judge in the California case this week chided the department for throwing up “roadblocks” in the distribution of emergency relief and suggested she might issue a ruling in coming weeks.
The Cares Act directed colleges and universities to dole out emergency grants to students to pay for expenses such as rent, child care, technology and groceries in light of disruption caused by the novel coronavirus. Although the legislation directs DeVos to distribute the funding to schools in the same way as other financial aid, there is nothing explicit in the bill about which students are eligible for grants.
That ambiguity, according to the Education Department, required the agency “to exercise its narrow interpretive authority” in defining eligibility. Because Congress used the federal financial aid framework elsewhere in the legislation, the agency concluded lawmakers intended for grants to be limited to students who are eligible for federal aid.
Several members of Congress have said it was never their intent for pandemic relief grants to be restricted in that manner. Sen. Patty Murray (D-Wash.) and Rep. Rosa L. DeLauro (D-Conn.) have asked DeVos to reverse her stance, while Sen. Tim Kaine (D-Va.) introduced legislation to expand eligibility.
The Education Department also claims its restrictions will prevent fraud because otherwise “unscrupulous institutions” could use the emergency grants to lure people to enroll or encourage students owing tuition to re-enroll to bolster revenue.
Justin Draeger, president of the National Association of Student Financial Aid Administrators, said the department already made it clear that pandemic relief grants could not be used toward outstanding balances, so there was little chance a school would just keep the money for itself.
“I find the department’s reasoning unconvincing and flimsy at best,” Draeger said. “If [the Education Department] was so concerned about fraud, waste and abuse, why did it give money to schools and then urge them to get that money out quickly, before issuing any guidance or regulation on student eligibility?”
Initially, DeVos told college presidents that the only requirement for the emergency grants was to use the money to cover expenses related to the disruption of campus operations. Otherwise, it was up to them. The funding agreement that colleges have been asked to sign says the grants are not to be considered financial aid, yet weeks after releasing the aid to schools, DeVos said the money could go only to students who qualify for federal aid programs.
The conflicting messages from the department became more confusing over the ensuing weeks after the agency said its guidance was unenforceable and promised to release more guidelines.
Other complications emerged. The only efficient way for colleges to know who is eligible for federal aid is by looking at federal aid applications. But millions of students don’t ever apply, including many who would qualify if they did. At last count, 7.5 million undergraduate and graduate students had not filled out the form. To address that issue, the Education Department said colleges should encourage eligible students to immediately apply for federal financial aid.
Thursday’s rule was met with swift condemnation from student advocates and higher education experts.
“It’s shameful the Education Department is exhausting every avenue in pursuit of the administration’s xenophobic policy agenda — all during a pandemic,” said Kyle Southern, policy and advocacy director for higher education and workforce at Young Invincibles, an advocacy group. “The Department’s effort to exclude hundreds of thousands of tax-paying students from assistance they deserve will also continue to cost millions of other students struggling to make ends meet.”
Southern and other advocates called on the courts to rebuke the DeVos interpretation of the law and urged Congress to amend the Cares Act to prohibit the restrictions.