ED Urges Court to Toss out Challenge to Aid Distribution, Pledging Additional Guidance

By Hugh T. Ferguson, NASFAA Staff Reporter

The Department of Education (ED) is urging a judge to disregard a lawsuit filed by the California Community Colleges System over eligibility requirements related to disbursement of funds from the Coronavirus Aid, Relief, and Economic Security (CARES) Act, since ED says it has not issued its final guidance on how to implement the aid.

The court filing, issued on May 25, follows an updated statement from ED on May 21 that said it would not enforce its initial CARES Act guidance that would limit federal emergency student grants to those eligible to receive Title IV aid, because it lacks “the force and effect of law.” Still, it stopped short of opening up grant eligibility to international students, those enrolled in the Deferred Action for Childhood Arrivals (DACA) program, and undocumented students.

“[ED] has not completed its decision making process and arrived at a final interpretation of [distributing emergency funding]. Instead, it has offered only preliminary guidance,” the legal document read. 

However, there has been no indication in any iteration of ED’s guidance — nor in the certification form that institutions must sign in order to receive the funds — that the guidance was preliminary.

Last week ED also said it “continues to consider the issue of eligibility” for the Higher Education Emergency Relief Fund (HEERF) under the CARES Act and “intends to take further action shortly.” 

ED in the court filing reiterated that it is still in the process of considering additional guidance and views its April 21 directions to be a “non-binding, preliminary first step.” Schools would only face a “hardship,” ED argued, if they were cautious in their application of aid, which attorneys said would be a “flawed understanding of what ED has said on the manner.”

“Any final determination by [ED] on HEERF funds may well provide a mechanism to assist [institutions] in verifying Title IV eligibility for students not already identified as eligible, or [ED] may yet otherwise address this issue,” the filing said.

Attorneys for ED further urged the court to not weigh in on the issue of aid distribution and argued that should a judicial interpretation be made, it would “prematurely and irrevocably foreclose [ED’s] efforts to administer HEERF funds.”

This legal challenge and continued guidance doled out by ED has left many questioning what additional amending will come next, leaving some to contemplate whether another iteration of ED’s interpretation will be changed into a complex rearticulation.

Washington’s attorney general also filed a legal challenge to ED alleging the guidance putting limitations on the CARES Act student grants would unnecessarily exclude otherwise eligible students from crucial emergency aid amid the global pandemic.

A hearing for the California Community Colleges System lawsuit is scheduled for June 9. It is unclear whether ED will provide any additional guidance prior to the hearing. 

 

Publication Date: 5/28/2020


Christina T | 5/30/2020 9:4:31 PM

ED is demonstrating no urgency in providing revised guidance to schools. In the meantime, students are hurting. By the time new guidance arrives my guess is most of the HEERF funds will be disbursed to students.

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