The Independent View: Judges Have Rebuffed Education Secretary’s Attempts to Pause or Change Obama-Era Policies

Education Secretary Betsy DeVos’ attempts to swiftly Roll Back Major Obama-Era Policies at her Agency are hitting a Roadblock, the Federal Courts.

Judges have Rebuffed DeVos’ attempts to Change Obama Policies dealing with everything from Student Loan Forgiveness to Mandatory Arbitration Agreements to Racial Disparities in Special Education Programs.

As a result, the Education Department is being Forced to carry out Obama-era Policies that the Trump Administration had been Fighting to Stop, stymying DeVos’ efforts to quickly Impose a Conservative Imprint on Federal Education Policy over the past Two years.

The latest Legal Blow came earlier this Month, when a Federal Judge Ruled DeVos Illegally Postponed a Regulation requiring States to Identify School Districts where there are Significant Racial Disparities among the Students placed in Special Education programs. And last Week, Education Department Officials began Implementing a Sweeping Package of Obama-Era Student Loan Policies after DeVos Lost a Lawsuit over Delaying them last Fall.

The Department already had to Forgive $150 Million in Student Debt under those Policies, which DeVos Argues are too Costly to Taxpayers and Unfair to Colleges. Department Officials also Directed Colleges to Stop Requiring Students to Sign Mandatory Arbitration Agreements, forcing them to Implement an Obama-Era Policy that largely Bans the Practice.

More Legal Challenges are in the Pipeline. A Federal Judge allowed a Challenge to DeVos’ Delay of Rules Governing Online Colleges to Proceed. And a Lawsuit over the Trump Administration’s Delays of the Obama Administration’s Signature Regulations aimed at Cracking Down on For-Profit Colleges is ripe for a Decision at any time.

Judges in the Cases decided so far have said the Trump Administration ran Afoul of the Administrative Procedures Act, Ruling that the Department’s efforts to Delay Policies were Arbitrary or Lacked a Reasoned Basis. “It speaks to the Department of Education’s unwillingness or inability to follow the basic law around how federal agencies conduct themselves,” said Toby Merrill, who Directs the Harvard Law School’s Project on Predatory Student Lending, which has Brought some of the Lawsuits against DeVos.

Every Administration has Wins and Losses in Court, Merrill said, but most have done Better at making sure they follow the Legal Rules of the Road for Rulemaking.
“At the very least, they cross their Ts and dot their Is and therefore are less vulnerable to some of the procedural challenges that have been the undoing of so many of this Department of Education’s policies,” she said.

In Rejecting the Trump Administration’s Efforts to Delay the Policies, Judges have largely focused on Procedural Problems. The Federal Judge Striking Down DeVos’ Postponement of Student Loan Regulations called her Delays “unlawful,” “procedurally invalid” and “arbitrary and capricious.” The Judge who Rejected the Delay of a Special Education Rule Faulted DeVos for Failing to Provide a “reasoned explanation” for Stopping the Policy.

“The Administration is Committed to Correcting the Regulatory Overreach of the Prior Administration and will continue to make the Case for Fair and Appropriate Regulatory Reform in the Courts,” Education Department Spokeswoman Liz Hill said.

Many of the Policies at Issue in the Lawsuits have Dealt with Student Loan Forgiveness. The Obama Administration began Forgiving the Debts of Some Students who it determined were Defrauded by their College after the Collapse of Corinthian Colleges, a Massive For-Profit Chain of Colleges. DeVos and other Conservatives have said that the Previous Administration’s approach was Too Lenient and Costly to Taxpayers. But the Trump Administration’s Effort to Scale back the Amount of Loan Forgiveness for some Defrauded Student Loan Borrowers has been Blocked in Court.

The Judge Ruled in that Case that the Education Department Violated Federal Privacy Law when it came up with a New Formula for Loan Forgiveness that Tied the Amount of Debt Relief a Borrower would Receive with Average Graduate Earnings at an Academic Program. The Trump Administration has Appealed the Ruling to the Ninth Circuit, where it remains Pending.

In another Case involving Obama-Era Regulations that Call for more Consumer Disclosures to Students of Online Colleges, a Judge Chastised the Trump Administration’s Arguments in Favor of Delaying them. The Judge wrote in that it “takes chutzpah” for the Education Department to say that it would be too Burdensome for Colleges to Provide the Disclosures to Students while also arguing that Students “should be able to hunt down this undisclosed information on their own.” The Judge hasn’t Ruled on the Merits of the Case, which is being brought by a Teachers Union, but Allowed the Lawsuit to Proceed.