Washington News Brief

By Sharon H. Bob, Ph.D., Higher Education Specialist, Powers Pyles Sutter and Verville, PC

Secretary of Education DeVos sends letter to Congressional leaders urging them to reject Biden’s agenda

On Jan. 4, 2021, Secretary of Education Betsy DeVos sent a letter to Congressional leaders urging them to protect the Trump administration’s education policies and reject President-elect Joe Biden’s agenda. In addition to the request to pass legislation to promote school choice at the elementary and secondary level, the letter also described some of the accomplishments of the Department of Education during the Trump administration, such as the ability for students and families to complete the FAFSA on their mobile app. In addition, Secretary DeVos noted that while there used to be many websites, which were confusing and frustrating for students and parents, there is now a single website, StudentAid.gov. She also urged Congress to preserve the new Title IX rules on the treatment of campus sexual assaults, which granted more protections to those accused of sexual assault.

A copy of the Secretary’s letter is found at: https://cdn.ymaws.com/www.ncher.us/resource/resmgr/daily_briefing/db2020/Letter_from_Sec_DeVos.pdf

ED lists members of NACIQI

On Jan. 6, 2021, the Department of Education published a notice in the Federal Register listing the members of the National Advisory Committee on Institutional Quality and Integrity (NACIQI).

A copy of the notice is found at: https://www.govinfo.gov/content/pkg/FR-2021-01-06/pdf/2020-29236.pdf

Democrats win Senate Majority as Warnock and Ossoff win senatorial race in Georgia; What does that mean for the 117th Congress?

On Jan. 6, 2021, the Democrats won control of the Senate when Rev. Raphael Warnock defeated Senator Kelly Loeffler and Jon Ossoff defeated Senator David Perdue, in dual runoff races that were unresolved from the November election. Democrats and Republicans will both have 50 seats in a 100-seat body. Since President Joe Biden and Vice President Kamala Harris were sworn into office, Vice President Harris will be able to cast a vote to break the 50-50 tie. Her role as the tiebreaker and the authority to recognize who speaks on the Senate floor will afford the Democrats control of the Senate.

House Democrats experienced a net loss of seats, an outcome no one predicted. Democrats won 222 seats to Republican’s 213. A majority vote in the House requires 218 votes. The margin is slim and assumes that the Democrats will be united on any bill up for a vote. Democrats flipped three seats and Republicans flipped fourteen seats, including one held by a Libertarian. The leaders in the House Education and Labor Committee will remain Congressman Bobby Scott (D-VA) as Chairman and Congresswoman Virginia Foxx (R-NC) as Ranking Member.

Since Democrats will be recognized as the majority party in the Senate, Senator Chuck Schumer (D-NY) will become the Senate Majority Leader and Senator Mitch McConnell (R-KY) will become Minority Leader. The Committees will be chaired by Democrats, and top Republican Committee Senators will assume Ranking Member positions on Committees. Senator Patty Murray (D-WA) will become Chair of the Senate Health, Education, Labor, and Pensions (HELP) Committee. Senator Murray has long been a proponent of college affordability and is extremely opposed to the Title IX regulations that were published in 2019. The retirement of former Senator Lamar Alexander (R-TN) means that the HELP Committee would have a new top Republican Ranking Member.

The Senate also has to decide how many seats on each Committee the majority and minority members have before they finalize committee membership. It is likely that each Committee will have one additional member from the Democratic majority side.

Senator Bernie Sanders (D-VT) will become Chair of the Senate Budget Committee, Senator Patrick Leahy (D-VT) will become Chair of the Senate Appropriations Committee, and Senator Sherrod Brown (D-OH) will become Chair of the Senate Banking, Housing, and Urban Affairs Committee.

The slim margin that the Democrats have in Congress means that it will be difficult for the Democrats to pass any major legislation, like the reauthorization of the Higher Education Act. Generally, bills are subject to the filibuster rule on the Senate side, which allows senators to indefinitely delay a final vote unless there are at least 60 votes to override the filibuster. Therefore, Democrats will need to work across the aisle to pursue significant policy changes. However, a special kind of legislation, called budget reconciliation, is not subject to the filibuster rule. Budget reconciliation is a process for considering tax, spending, and debt limit-related legislation. Budget reconciliation, like the stimulus bill that passed in December, which included changes to the financial aid programs, can be used to push through policy changes as long as the changes meet the “Byrd Rule.” The “Byrd Rule” prevents any legislation from being included in a budget reconciliation bill that does not have a budgetary effect and is unrelated to spending or taxes.

As the majority party, the Democrats will be able to set the tone and set the agenda. The Democrats should be able to confirm all of President-elect Biden’s cabinet choices and judicial nominations that require Senate approval. However, with a narrow majority in the Senate and a smaller majority in the House, Democrats will have little room for defections.

DeVos resigns in protest

On Jan. 7, 2021, Secretary of Education Betsy DeVos sent a letter to President Trump resigning her position. In an act of protest, Secretary DeVos cited the mob attack on the Capitol. Her letter said: “We should be highlighting and celebrating your Administration’s many accomplishments on behalf of the American people. Instead, we are left to clean up the mess caused by violent protestors overrunning the U.S. Capitol in an attempt to undermine the people’s business. The behavior was unconscionable for our country.”

Secretary DeVos was one of the most unpopular cabinet members. She was barely confirmed, with Vice President Mike Pence needing to vote to break the tie in the Senate. She rolled back several Obama-era regulations, including those governing sexual assault on campus, those granting relief to borrowers who had been defrauded by their colleges, and those that tightened oversight of for-profit institutions.

The Secretary’s letter is found at: https://www.nasfaa.org/uploads/documents/DeVos_Resignation_Letter.pdf

Biden pledges to extend student loan COVID-19 relief

On Jan. 8, 2021, President-elect Joe Biden’s transition team issued a tweet that announced that the Biden administration would continue the federal student loan administrative forbearance period, the pause in interest rate accrual, and the suspension of collections on defaulted student loans. The Biden administration also supports cancelling $10,000 of federal student loan debt per person. The COVID-19 relief measures will expire on Jan. 31, 2021 unless action is taken by the Biden administration.

Department announces change to the College Scorecard

On Jan. 12, 2021, the Department of Education announced new changes to the College Scorecard to provide prospective students with information on how well borrowers from colleges and universities are able to repay student loans. The added information shows the percentages of borrowers who fall into eight loan repayment statuses two years after entering repayment: paid in full, making progress, delinquency, forbearance, default, not making progress, deferment, and loans discharged.

Acting Secretary of Education Mitchell Zais said: “Today, we continue to build on the updates we’ve made to College Scorecard over the last several years by delivering even more transparency around student loan repayment … Prospective students can now see a comprehensive picture of how borrowers from each institution are meeting their federal student loan obligations.”

The press release stated that later this year, the College Scorecard will be updated to include a new metric: the year-over-year change in cost to each institution.

A copy of the press release is found at: https://www.ed.gov/news/press-releases/us-department-education-announces-additional-college-scorecard-updates-providing-greater-transparency-borrower-repayment-progress-and-postsecondary-costs

Department releases 2020-24 Strategic Plan

On Jan. 13, 2021, Federal Student Aid (FSA) announced that the “FY 2020-24 Strategic Plan” was finalized and published at: https://studentaid.gov/data-center/business-info/strategic-planning-and-reporting. The strategic plan illustrates how FSA will modernize the delivery of the federal student aid programs and identifies steps necessary to achieve FSA’s strategic goals.

A copy of the announcement is found at: https://ifap.ed.gov/electronic-announcements/011321FY2020-24StrategicPlanPublished

OCR delivers Annual Report

On Jan. 13, 2021, the Office of Civil Rights (OCR) delivered its Annual Report to Congress highlighting major milestones and achievements in protecting students’ rights in FY 2020. The Annual Report summarizes enforcement achievements and policy priorities for FY 2020. The press release noted that former Secretary of Education Betsy DeVos made aggressive enforcement of students’ civil rights a top priority.

A copy of the Annual Report is found at: https://www2.ed.gov/about/reports/annual/ocr/report-to-president-and-secretary-of-education-2020.pdf

A copy of the press release is found at: https://www.ed.gov/news/press-releases/office-civil-rights-delivers-annual-report-congress-highlighting-major-milestones-and-achievements-protecting-students-rights-0

Department announces release of $21.2 billion of HEERF funds for higher education institutions

On Jan. 14, 2021, the Department of Education announced that an additional $21.2 billion is now available to institutions of higher education (IHEs) to serve students and ensure learning continues during the COVID-19 pandemic. This funding is allocated to the Higher Education Emergency Relief Fund II (HEERF II) by the Coronavirus Response and Relief Supplemental Appropriations Act (CRRSAA), which was signed into law by President Donald J. Trump on Dec. 27, 2020.

The CRRSAA appropriated $82 billion for education, and the Department has made available all but $1.9 billion of that funding in the 18 days since the law was enacted. Earlier this year, former Secretary DeVos expeditiously provided $30.75 billion for education through the Coronavirus Aid, Recovery, and Economic Security (CARES) Act.

The Department awarded $20.5 billion to public and non-profit colleges and universities and $681 million to proprietary schools. Public and non-profit schools can use their awards for financial aid grants to students, student support activities, and to cover a variety of institutional costs, including lost revenue, reimbursement for expenses already incurred, technology costs associated with a transition to distance education, faculty and staff trainings, and payroll. Proprietary schools must use their awards exclusively to provide financial aid grants to students.

A copy of the press release is found at: https://www.ed.gov/news/press-releases/us-department-education-quickly-makes-available-more-21-billion-taxpayer-funds-support-continued-education-colleges-universities

CRRSAA information is found at: https://www2.ed.gov/about/offices/list/ope/crrsaa.html

Attorney General Becerra sues Department of Education for easing oversight of for-profit institutions

On Jan. 15, 2021, California Attorney General Xavier Becerra announced that he has filed a lawsuit against the Department of Education over the Department’s easing of regulation related to the oversight of for-profit institutions. Mr. Becerra is President Biden’s nominee to be the new Secretary of Health and Human Services (HHS). The lawsuit deals primarily with the Distance Education and Innovation final regulations published on Sept. 2, 2020.

A copy of the announcement is found at: https://oag.ca.gov/news/press-releases/attorney-general-becerra-sues-us-department-education-easing-oversight-profit

OPE announces updated waivers and modifies statutory and regulatory provisions under the HEROES Act

On Jan. 15, 2021, the Office of Postsecondary Education (OPE) announced the publication of a Notice in the Federal Register updating waivers and modifications of statutory and regulatory provisions under the authority of the Higher Education Relief Opportunities for Students Act of 2003 (HEROES Act). To assist institutions, ED provided a matrix that briefly describes all flexibilities, provides links to source documents, and explains the expiration of the waivers and modifications. The electronic announcement describes new waivers and flexibilities established in the Dec. 11, 2020 Federal Register Notice.

A copy of the electronic announcement is found at: https://ifap.ed.gov/electronic-announcements/011521PublicationFederalRegisterWaiversStatutoryRegulatoryHEROESAct

A copy of the Federal Register Notice is found at: https://ifap.ed.gov/federal-registers/FR121120

OPE releases ATB FAQs

On Jan. 15, 2021, the Office of Postsecondary Education (OPE) released frequently asked questions on ability to benefit. The document is an extension to the question and answer attachment to Dear Colleague GEN-16-09.

A copy of the announcement is found at: https://ifap.ed.gov/electronic-announcements/011521AbilitytoBenefitFAQ

Biden releases the details for a legislative package for COVID-19 relief

On Jan. 15, 2021, President Biden released details of a legislative package calling for Congress to pass an additional $170 billion in pandemic relief funding for education. The plan would ensure that colleges have critical resources to implement public health protocols, execute distance learning plans, and provide emergency grants to students in need. This $35 billion in funding for colleges and universities will be directed to public institutions, including community colleges, as well as public and private Historically Black Colleges and Universities and other Minority Serving Institutions. No mention was made of private colleges and universities outside of minority-serving institutions. Millions of students will receive an additional $1,700 in financial assistance from their college.

A copy of the fact sheet is found at: https://buildbackbetter.gov/wp-content/uploads/2021/01/COVID_Relief-Package-Fact-Sheet.pdf

Biden names five women as Deputy Secretaries including the Deputy Secretary for the Department of Education

On Jan. 18, 2021, President Biden named five women as deputy secretaries. Cindy Marten was named Deputy Secretary of the Department of Education. Ms. Marten is currently the superintendent of the San Diego Unified School District. With a 32-year career as an educator, including as a principal, vice principal, and literacy specialist, Ms. Marten took a career path similar to President-elect Biden’s nominee for Secretary of Education, Miguel Cardona.

OPE issues guidance on accreditation and eligibility requirements for distance education

On Jan. 19, 2021, the Department of Education issued guidance on accreditation and eligibility requirements for distance education. On Aug. 31, 2020, ED published a Federal Register Notice concerning the rescission of guidance that was outdated, and at that time, Dear Colleague letter GEN-06-17 was rescinded. The attachment to the Jan. 19, 2021, announcement provided guidance that clarified that except for the flexibilities provided by the Secretary in response to the national pandemic, before an institution offers any distance education programs that can be eligible for Title IV, the institution must be evaluated and accredited for its effective delivery of distance education programs. Further, after an institution has been approved to offer distance education by the accrediting agency, an institution may offer distance education programs without further accreditor approval, “unless and until a program goes above 50 percent of distance education or the institution itself goes over 50 percent for distance education delivery.” Exceeding the 50 percent threshold for distance education would then trigger the requirement for approval by the institution’s accrediting agency of a substantive change.

A copy of the announcement is found at: https://ifap.ed.gov/electronic-announcements/011921DistanceEducationAccreditation

Biden sworn in as 46th President of the United States and signs a series of executive orders

On Jan. 20, 2021, former Vice President Joe Biden took the oath of office and was sworn in as the 46th President of the United States and former Senator Kamala Harris was sworn in as Vice President. During his inauguration address, President Biden appealed to the themes of national unity and bipartisan compromise.

President Biden signed a series of executive orders, including one that will ask the Department of Education to extend the COVID-19 pause on student loan payments and interest rate accrual for federal student loans until Sep. 30, 2021. President Biden also signed an executive order aimed at “preserving and fortifying” the Obama-era Deferred Action for Childhood Arrivals (DACA) Program and directing federal agencies to freeze any new regulations issued by the Trump administration until they are reviewed by the White House Office of Management and Budget. As part of the series of executive actions on his first day, President Biden issued an order asserting that Title IX’s protections based on sex extend also to sexual orientation and gender identity.

Absent from the package of executive orders is any provision for debt cancellation. It is not clear whether the President has the authority to enact widespread student loan debt forgiveness without congressional approval. [On Jan. 14, 2021, the Department of Education released a memo questioning the Secretary’s authority for student loan forgiveness.]

A copy of the Fact Sheet: “President-elect Biden’s Day One Executive Actions Deliver Relief for Families Across America Amid Converging Crises” is found at: https://northernplains.org/wp-content/uploads/2021/01/FACT_SHEET_Biden_Climate_Actions.pdf

A copy of the memo on student loan forgiveness is found at: https://static.politico.com/d6/ce/3edf6a3946afa98eb13c210afd7d/ogcmemohealoans.pdf

On Jan. 21, 2021, at the request of President Biden, the Acting Secretary of Education Michael Zais, issued a press release announcing that the Department will extend the pause on federal student loan payments and collections and will keep the interest rate at 0 percent. The Department’s student aid website was also updated. See: https://studentaid.gov/announcements-events/coronavirus

A copy of the press release from the Acting Secretary is found at: https://www.ed.gov/news/press-releases/request-president-biden-acting-secretary-education-will-extend-pause-federal-student-loan-payments

White House Chief of Staff issues memo freezing final regulations

On Jan. 20, 2021, White House Chief of Staff Ron Klain issued a memo to all federal agencies directing them to halt or delay last minute or “midnight regulations” from the Trump administration. The memo states that it will “pause any new regulations from moving forward and give the incoming administration an opportunity to review any regulations that the Trump Administration tried to finalize in its last days.” It directs all agencies to confer with the White House Office of Management and Budget (OMB) before renewing any regulatory activity.

A copy of the memo is found at: https://cdn.govexec.com/media/gbc/docs/pdfs_edit/012021cb2.pdf

Department announces senior political appointees

On Jan. 21, 2021, the Department of Education announced senior political appointees who will lead various parts of the Department of Education. They include Sheila Nix, Chief of Staff; Claudia Chavez, White House Liaison; Suzanne Goldberg, Deputy Assistant Secretary for Strategic Operations and Outreach, Office for Civil Rights; Ian Rosenblum, Deputy Assistant Secretary for Policy and Programs, Office of Elementary and Secondary Education; Emma Leheny, Principal Deputy General Counsel, Office of the General Counsel; Donna Harris-Aikens, Senior Advisor for Policy and Planning, Office of the Secretary; Ben Miller, Senior Advisor to the Chief of Staff; Ben Halle, Deputy Assistant Secretary for Communications, Office of Communications and Outreach; Rich Williams, Chief of Staff, Office of Postsecondary Education; Greg Schmidt, Senior Counsel, Office of the General Counsel; Jasmine Bolton, Senior Counsel, Office of Civil Rights; and Alex Payne, Special Assistant, Office of Legislation and Congressional Affairs. A press release describes the political appointees’ backgrounds.

A copy of the press release is found at: https://www.ed.gov/news/press-releases/us-department-education-announces-biden-harris-appointees

OIG announces issuance of Dear CPA Letter extending site-visit exemption

On Jan. 22, 2021, the Office of Inspector General (OIG) announced the issuance of a Dear CPA Letter CPA-21-01, which extended the audit site visit exemption provided in Dear CPA Letter CPA-20-01 by tying its expiration to the COVID-19 national emergency. It also extends the site visit exemption to foreign school audits and attestation agreements. The limited exemption described in this letter applies to proprietary school audits and foreign school audits and attestation engagements for any fiscal years in which the COVID-19 national emergency declaration was in place on the last day of the school’s fiscal year.

A copy of the OIG announcement is found at: https://ifap.ed.gov/electronic-announcements/012221IssuanceofDearCPALetterCPA210101

Department’s accrediting agency staff recommends terminating the federal recognition of ACICS

On Jan. 22, 2021, the Department of Education released a report prepared by the accrediting agency staff recommending that the Accrediting Council of Independent Colleges and Schools (ACICS) be terminated as a federally recognized accrediting agency. The recommendation will be considered by the National Advisory Committee on Institutional Quality and Integrity (NACIQI) at its meeting on Feb. 25, 2021. NACIQI function is advisory and not binding on the Department. Staff and NACIQI recommendations will be sent to a senior department official for a decision as to whether ACICS will retain ACICS’ recognition.

A copy of the report is found at: https://surveys.ope.ed.gov/erecognition/Home/StaffReport?aid=15&mid=117&status=final&format=html&source=email#maincontent

SHARON H. BOB PH.D., Higher Education Specialist on Policy and Regulation, is a member of the Education Group at the Washington, DC law firm of Powers Pyles Sutter & Verville, PC. Dr. Bob advises all sectors of higher education regarding strategic issues pertaining to their participation in the federal student financial assistance programs, accreditation, licensure, education tax benefits, and related regulatory matters.