Aug. 8, 2019
The latest chapter in the decades-old deregulation saga unfolded over the last few weeks, as Education Secretary Betsy DeVos unsuccessfully played the “sky is falling” card in a desperate attempt to derail yet another common-sense regulation that a federal court recently mandated be implemented immediately.
The target was California students, and the issue was the state’s authorization of online college programs headquartered elsewhere in the country.
For those unfamiliar with this issue, a brief history: The law says that if colleges and universities want to provide taxpayer-financed federal student aid, then they need to get authorization to operate by the states in which they are located. However, with some states failing to do so properly, the Obama Administration in 2010 published regulations to clarify the minimum a state must do for colleges to follow the law, which included a simple process to authorize each school and a requirement to have a student complaint system in place, for both brick-and-mortar and online schools. It’s that latter piece that has been the point of contention in California.
As is customary in Washington, when the federal government regulates, the higher education industry pushes back hard, arguing that implementation would prove too difficult and that the rule would shut down schools. But after a legal back-and-forth, a court upheld the requirement for brick-and-mortar schools and, after four years of extensions, the rule took effect. No schools closed, and millions of students had protection by their states and a place to route any concerns about their colleges.
One loophole, however, was a 2011 court ruling on procedural grounds that nullified the requirement for online programs, which were able to circumvent these student protections outside of the states in which they were headquartered. So in 2016, the Obama Administration published an update that closed that loophole for online colleges, leveling the playing field and ensuring the benefits accrued to all students, not just those who enrolled locally.
Then came Secretary DeVos and a full-throttle pursuit of deregulation, rolling back a series of Obama-era rules meant to safeguard students and taxpayers against low-quality and predatory schools. After a full 18 months in office, with requests from colleges and states for clarification about how and when the rules should be implemented left unanswered, she abruptly delayed the rule, without justification and without following the rules for such delays. After being sued by the National Education Association and the California Teachers Association, a judge ruled in April 2019 that the delay had been illegal and ordered that the rule take effect at the end of May.
But instead of acting with prudence and fidelity, and working to ensure a smooth implementation by providing information and technical assistance to states, the Department of Education adopted industry scare tactics and announced--with no further direction about what the announcement would mean for students and colleges and three weeks into the start of the financial aid award year--that thousands of California students would immediately lose access to federal student aid for their online programs. The reason, she claimed, was that the state lacked a student complaint system that covered all California online students, as required by the rule. Well, guess what? Within the week, California set up such a system, ensuring tens of thousands more students could file any complaints about their colleges.
While any reasonable person would have viewed this as a welcome development, apparently the state calling the bluff was not what the Department had in mind. The Secretary issued a press release calling on the teachers’ unions to drop their lawsuit, or else she would punish students in other states.
A few days later, the Department’s true intent became clear. A letter sent to California asked for more detail on the complaint system, touted the Administration’s impending plan to eliminate the complaint system requirement for online schools altogether, and promised to speed up that rollback. In the meantime, the Department back-tracked on its threat to cut off federal financial aid eligibility.
Secretary DeVos is wrong, both in policy and process. But while we can disagree on the former, the Secretary’s motivations on the process used to undermine the implementation of the rule (and consequently promote the rollback) are as transparent as they are contemptible. For more than two years, the Department failed to prepare for implementation of a straightforward and simple consumer protection measure—or even to legally reverse it. And then she made students her pawns in the game.
Sadly, this is not the first time that this Department of Education has put ideology and politics above students and taxpayers. Nor is it the first time those attempts have been thwarted in court. While policy disagreements may be valid, to risk immediate harm to students in an effort to score political points using industry scare tactics is deeply disappointing, even by this Administration’s standards.
Both of the authors worked at the Education Department during publication of the online state authorization regulation.