Democrats Question ED’s Title IV Eligibility Requirement for Emergency Aid

By Owen Daugherty, NASFAA Staff Reporter

The Department of Education (ED) attempted to clear up confusion coming from higher education institutions when it issued new guidance last week that effectively barred college students living in the country illegally from receiving emergency grant aid allocated under the Coronavirus Aid, Relief, and Economic Security (CARES) Act. But the apparent reversal from previous guidance has many lawmakers crying foul.

Institutions had been pressing for answers on which students were eligible to receive the emergency funding. ED’s guidance, which came in the form of a FAQ document, stipulated that students must be Title IV-eligible in order to receive the aid, meaning that international students and those in the country under the Deferred Action for Childhood Arrivals (DACA) program, among others, would be excluded from receiving funding. 

Notably, when ED earlier this month released the certification form institutions must submit to receive the funds to distribute to students, neither the statute nor certification form required that these funds be provided to Title IV eligible students. The certification form also made clear that ED does not consider these individual emergency financial aid grants Title IV aid.

The new guidance has been met with pushback from dozens of Democratic lawmakers who accused ED of undermining “clear congressional intent” in the legislation.

“DACA recipients attending institutions of higher education across the country face challenges like other students, many with the added burden of supporting their parents and siblings or being the first in their families to attend college,” the senators wrote in a letter to ED Monday. “These students should not be excluded from critical emergency financial aid. Indeed, those who are especially vulnerable to economic hardship are exactly whom these funds were designed to help.”

The letter, spearheaded by Sens. Michael Bennet (D-Colo.) and Bob Menendez (D-N.J.), calls on Education Secretary Betsy DeVos to reverse the decision. The senators said that nowhere in the language of the law are there limitations on which students could receive the emergency cash grants.

“The language in the CARES Act allows DACA recipients to receive these emergency financial aid grants, at the discretion of each individual institution,” they wrote. A letter from House Democrats, signed by more than 70 lawmakers, was also sent to ED Monday.

“In this extraordinary time we should not be dividing students based on immigration status or unduly limiting aid,” the House lawmakers wrote. “This pandemic has upended the lives of all students from coast to coast, and colleges and universities should have the flexibility to help those in need.”

The letters from lawmakers this week mark the first formal opposition to the guidance, though several prominent Democrats took to Twitter earlier to chide ED after it was made clear DACA students would be left out.

The guidance from ED could impact nearly half a million students living in the country illegally who are enrolled in higher education, according to a recent report from the Presidents’ Alliance on Higher Education and Immigration.

ED, however, said it is simply following the law in how it determines which students are eligible for the emergency aid. 

“The CARES Act makes clear that this taxpayer-funded relief fund should be targeted to U.S. citizens, which is consistently echoed throughout the law,” an ED spokesperson said in a statement.

The spokesperson for ED pointed to parts of the CARES Act that referenced two types of federal financial aid — Pell Grant eligibility and Title IV funding. Additionally, the spokesperson noted the law “requires the Secretary to use the same systems as the Secretary uses to distribute funds to each institution under Title IV of the Higher Education Act.”

In an interview that was published Monday, DeVos reiterated ED’s reasoning for excluding DACA students from the emergency aid.

“That's kind of the distinction that Congress was explicit about in the law. Students that receive Title IV funding — funding from the federal government for federal student aid — are the universe of students that we want and need to help most directly,” DeVos said. “Congress had the opportunity to write the law a different way. They chose not to. And I’m there to follow the law.”

The Senate Democrats’ letter acknowledged that some sections of the stimulus law did specifically exclude those living in the country illegally from receiving aid, though they contend that’s not the case for the higher education portion.

“[ED] cannot project a specific prohibition from one section of the law to an unrelated and independent section of the law where Congress made no such prohibition,” the senators wrote.

While students living in the country illegally do not qualify for federal financial aid funds, many believed ​the emergency grants allocated under the CARES Act did not fall under that category, said Kerry B. Melear, a professor at the University of Mississippi who specializes in higher education law.

“On the legislation itself, there's not specificity there with regard to eligibility, which I imagine is vexing to practitioners,” he said.

When first announcing the emergency aid grants, DeVos wrote in a letter to institutions that the law gave them “significant discretion on how to award this emergency assistance to students.”

“This means that each institution may develop its own system and process for determining how to allocate these funds, which may include distributing the funds to all students or only to students who demonstrate significant need,” she wrote on April 9. At the time, it appeared ED was leaving the responsibility to determine which students would receive the funding up to the schools.

Further adding to perceived inconsistencies from ED is language in the funding certification agreement institutions must sign in order to receive the emergency grants that stated ED “does not consider the emergency financial aid grants to constitute federal financial aid under Title IV of the Higher Education Act.”

In fact, a vast majority of schools waited to apply for the emergency relief as they waited for more guidance, POLITICO reported, as just 1% of the more than $6 billion in emergency aid for students had made its way to institutions before ED issued the additional information. 

Melear predicted ED would issue further information as its guidance on DACA students left many institutions surprised and still somewhat confused. Additionally, he said schools could get creative in how they may direct funding outside of the CARES Act to international and DACA students. 

Meanwhile, some in the higher education community, including NASFAA, have expressed concern that in its attempt to box out DACA students and other groups, ED may be unintentionally harming larger swaths of students, as Section 484 in Title IV of the Higher Education Act outlines eligibility requirements beyond those touching on citizenship.

A low-income student who, for example, had to move off campus unexpectedly now cannot qualify for any congressionally-appropriated emergency grants because of a minor drug conviction. A student who needed to purchase a laptop to stay enrolled as their school went online, but didn’t register for Selective Service also does not qualify for any emergency grants, NASFAA President Justin Draeger explained. 

“Even though Congress intended these funds to go to students who experienced disruptions, ED has deemed large numbers of them all ineligible,” Draeger said. “In effect, ED took non-Title IV money intended for all students who are struggling as a result of the pandemic and made it available only to students eligible for federal student aid."


Publication Date: 4/29/2020

Jim E | 4/29/2020 5:49:04 PM

Our first commenter, Raymond G. (at the bottom of the thread) appears to have misunderstood the full eligibility impact of the DOE's recent guidance/clarification/FAQ. Of course DACA students have never been Pell eligible, that is hardly the only point.. Prior to DOE's overreach, we were told in the Act itself we could award to all students, including all of our collective millions of students who do not file a FAFSA -- and now we can't. That is the far broader problem. (jimeddy in Michigan/Texas)

Judith W | 4/29/2020 4:13:50 PM

I think it is important to take heed of the fact that the funds need to be provided to students because of a disruption in campus operations...students being forced to leave dormitories, meal plans, athletic event fees, paid for benefits that were not provided. If a DACA student paid for these benefits, the student should receive some type of benefit. If a DACA student lived at home without paying for room/board, etc,, while their lives may be disrupted because of COVID, campus operations were not directly responsible for that disruption. Our institution has no housing, no meal plans, no athletic functions. We transitioned students to on-line learning. As a health science institution, more than a few students will have clerkships/clinical experience disrupted for the time being; however, they have been transitioned to other coursework delivered on-line. This funding is not a on-going flood of resources. Students who may not graduate on time may have to extend their time on campus through the summer...these are the types of students that will need help because of the 'expense' to stay beyond their expect graduation dates, etc. To just take the number enrolled, eligible aid recipients and divide the funding equally among all students (who may not have experienced any expense, any disruption), is egregious.

Bruce D | 4/29/2020 1:26:12 PM

The downside to making everyone eligible is that the amounts will be so small as to be meaningless, at least at our school.

Robert B | 4/29/2020 12:2:45 PM

My school enrolls about 6,000 students annually. When we first heard about the grants we intended to make awards to all students, and my first list was about 5,300 eligible, enrolled students. After the April 21 FAQ, I narrowed the list to include only those with a valid FAFSA and came up with about 4,100 eligible students. That's 1,200 students now ineligible, mostly because not everyone at my school files a FAFSA. We probably have less than 10 DACA students, and only 200 or so international students. So 5 students were declared ineligible for each student they actually intended to declare ineligible. I call that overshooting the mark.

Joel T | 4/29/2020 11:41:38 AM

G. Michael J. - that is absolutely correct. I work at a non-residential, two-year public institution. I think I could reasonable say that the "expenses" did not change for a majority of our students. However, most have an increased need due to the impact on their income.

If they are going to tie HEERF funds to Title IV eligibility, why not just dump the funds into the SEOG program and let us administer it through there with expanded eligibility?

A lot of this just does not seem to have followed logic, but that's just my opinion...

G. Michael J | 4/29/2020 11:27:11 AM

Add to this issue that the funds can only be used to help eligible students cover specific expenses and not loss of income, and we have a near-conundrum in how to distribute them.

Joel T | 4/29/2020 11:22:30 AM

A lot of federal funding has never gone to undocumented/DACA students, so this was no real surprise. I think the frustration became that the guidance effectively excluded everyone in continuing education programs, as an example, and people that were self paying and did not fill out a FAFSA.

This pandemic has impacted everyone regardless of socioeconomic status, and people that had stable income have now been furloughed or laid off. Stating that these students now have to essentially go through the entire FAFSA process to apply for an EMERGENCY grant is just unnecessary since the CARES Act funds are NOT Title IV funds.

Tracey O | 4/29/2020 11:15:12 AM

Title IV eligibility also means students must be meeting Satisfactory Academic Standards. Now low performing students might not qualify or will have to submit appeals. These are emergency funds and we shouldn't be making it so difficult for students to get assistance. Plus it will now take longer to process and award these funds.

Raymond G | 4/29/2020 10:13:16 AM

Federal funding like Pell has never gone to undocumented students. I didn't see this as a "reversal" but more of a clarification. A reversal would have been if they specifically stated it should go to DACA students then later said it shouldn't. Not saying it shouldn't go to DACA students but let's not create bias where there was none. It's been the FAFSA for federal school funds for how long.

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