Next month, the US Supreme Court will determine whether the Department of Education overreached when it decided to forgive hundreds of billions of dollars in student loans without the authority to do so from Congress. Meanwhile, the department is reversing the Title IX regulations enacted under Secretary Betsy Devos, which had received bipartisan praise.
The department is also conducting rulemaking to find more ways to forgive existing loans (such as the Borrower Defense to Repayment rule) and future student loans (some of which may dwarf the previously announced forgiveness). Through regulatory rewrites including the Gainful Employment rule, it also seeks to make it harder to operate a for-profit college or university. But the department will not stop there.
This week, the department published its forecast for future rulemaking. On the agenda: regulations on accreditation, distance education, and state authorization of colleges and universities. These are critical issues that determine which colleges and universities are eligible for federal financial aid.
Like Title IX, Borrower Defense, and Gainful Employment, these rulemakings will give the public and regulated parties whiplash because they were just rewritten under Secretary DeVos. Under those still-new regulations, accreditor monopolies were eliminated and competition among both accreditors and colleges was promoted. For the first time, competency-based education programs were considered in regulation, and distance education programs were treated more similarly to brick-and-mortar programs—something that proved essential when nearly every college and university had to go fully remote during COVID-19 lockdowns.
Like the Borrower Defense and Gainful Employment rules, this new rulemaking will require negotiated rulemaking, a process of convening key constituencies to debate the merits of each proposal and, hopefully, achieve consensus. Despite the political rancor Secretary DeVos was subjected to, her team at the Department (of which I was a part) was able to achieve agreement on every word of these regulations with a diverse group of over a dozen mostly left-of-center accreditors, colleges and universities, students, consumer advocates, and others.
Now, at the urging of some progressive groups, the department will again rewrite these regulations that took effect in 2020 and 2021. Its specific goals are not yet specified, but the department has already attempted to eradicate the competitive marketplace that accreditors and colleges supported before it can even get off the ground. The first test case is in Florida, where Governor Ron DeSantis signed a bill that embraces the new flexibilities in these regulations and directs the state’s public institutions to seek a new accreditor.
The department subsequently attempted to undo the consensus regulations by reinterpreting longstanding policies via a blog post. The new interpretation undermines the judgement of state elected officials about how to run their public colleges and universities and makes it more difficult for them to choose an accreditor that fits their needs (or escape one that is failing them). Already, the move is facing opposition, but it may still have a chilling effect on the willingness of other colleges and universities to switch accreditors and on the willingness of accreditors to accept them.
The Department of Education continues to quietly enact policies that even make much of the progressive higher education establishment uneasy. In the aftermath of the student loan forgiveness announcement, policy leaders and the public have started to pay more attention to the department’s actions. Hopefully these next steps will get the scrutiny they deserve.
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