Twice a year, each federal agency releases a “Unified Agenda and Regulatory Plan,” essentially a forecast of which topics it is likely to regulate in the coming months. The most recent update by the Department of Education, published this week, gives us our best look yet at the progress the Biden administration has made and what their record of accomplishment might look like, particularly in higher education. While hundreds of billions of dollars in student loans have already been forgiven without Congressional authorization, much of the remainder of their loan forgiveness agenda as well as many other priorities appear in peril of running short on time.

I’ve worked on the Agenda in prior years at the Department, so I know that a lot of it is pure guesswork. However, it can give outsiders a view of which efforts an administration is prioritizing and which are getting pushed to the backburner.

For the current administration, many components of their agenda have not only been slowed down by court challenges, but also by the regulatory process itself, which always takes longer to navigate than one expects. For instance, President Biden’s top higher education priority has always been forgiving as many loans as possible, by any means necessary. So far, his administration has proven pretty effective at doing so, forgiving more than $400 billion, primarily by extending the COVID payment pause and through a number of other modest tactical efforts.  Setting aside whether this priority represents a nakedly political attempt to buy votes (as many have suggested), the overwhelming share of their forgiveness efforts are very likely illegal. 

The President’s marquee loan forgiveness policy was already struck down once by the Supreme Court, but the Agenda points to a final rule meant to give it another go right before the election. Other loan changes have a longer forecast. However, the most consequential program is SAVE, which incentivizes millions to borrow as much as possible for their education as well as living expenses with the expectation that much of it will be forgiven. As of now, SAVE is partially paused by multiple courts, with higher courts likely to eventually weigh in.

But what about the rest of the Administration’s agenda? Attempts to go after for-profit colleges through Borrower Defense (forgiving loans if students are “harmed”) and Gainful Employment (revoking access to federal student aid if students are unsuccessful in careers after graduation) are also being aggressively challenged in courts. These and other challenges stand a better chance at succeeding with the recent end of the Chevron doctrine.

Another proposed rule is expected later this year to roll back some of the accreditation reforms enacted by Secretary DeVos and make it more difficult for institutions to run online college programs and serve students in multiple states. However, even if this proposed rule is published soon, a final rule before inauguration day might prove difficult if the Department receives many comments from the public.

Other proposals have been pushed off much further, including attempts to regulate Online Program Managers and potentially much of the higher education technology sector. Early proposals would have hampered innovation across higher education and received significant pushback from even the administration’s allies. Currently, a mid-2025 date is set for the release of a proposed rule. A similar timeline is in place for regulations affecting employer eligibility in the Public Service Loan Forgiveness program. 

Court decisions and the results of the election will have significant bearing on whether the Biden administration can claim victory on many of its higher education priorities. However, what once looked like an unstoppable transformation of higher education has gotten considerably bogged down by the difficulties of the rulemaking process and direct challenges by Republican state attorneys general. If President Biden doesn’t get a second term, it seems likely that he could end up with a paltrier education legacy than many expected.

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