After facing heavy criticism over guidance that would limit federal emergency student grants to those eligible to receive Title IV aid, including critique from NASFAA, the Department of Education (ED) late on Thursday pulled an about-face in an updated statement saying it would not enforce that guidance 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, due to statutory language from the 1996 welfare reform law, the Personal Responsibility and Work Opportunity Reconciliation Act, prohibiting them from receiving federal public benefits, such as grants.
ED also said it “continues to consider the issue of eligibility for HEERF emergency financial aid grants under the Coronavirus Aid, Relief, and Economic Security (CARES) Act and intends to take further action shortly.” Given the kafkaesque rollout of the CARES Act emergency grants to date, NASFAA cannot proffer an opinion as to what additional guidance ED may issue or when that guidance will be issued.
The updated statement comes after at least two lawsuits were filed against ED — one from the California Community Colleges System and another from Washington’s attorney general — alleging the guidance would unnecessarily exclude otherwise eligible students from crucial emergency aid amid the global pandemic.
In April 21 guidance — weeks after it had initially released the student portion of funds in the Higher Education Emergency Relief Fund to institutions, giving wide flexibility in how they determined to distribute the grants to students — ED said the grants would only be available to students who are eligible to receive Title IV aid, cutting out not only international students, those enrolled in the Deferred Action for Childhood Arrivals (DACA) program, and undocumented students, but also U.S. citizens who haven’t registered with Selective Service, or have a prior drug conviction, among other things.
Schools immediately questioned whether they would need to have a FAFSA on file in order to disburse CARES Act emergency funds to students. While ED’s guidance stated that a FAFSA is not required, having one on file would be the only practicable way for an institution to determine that a student is eligible to participate in the student aid programs and meet all applicable eligibility requirements.
When pressed further as Democrats blasted ED’s actions, accusing the agency of undermining “clear congressional intent” in the legislation, a spokesperson for the department said it was 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, pointing 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.”
The updated statement goes on to clarify that ED’s earlier guidance regarding Title IV eligibility for student emergency grants under the CARES Act does not apply to the use of the Higher Education Emergency Relief Fund (HEERF) institutional allocations to cover any costs associated with significant changes to the delivery of instruction due to the coronavirus. For example, institutions may use the institutional share funds to provide refunds to students for room and board, tuition, and other fees to all students regardless of their Title IV eligibility, including citizenship status.
As a reminder, if the school chooses to use institutional share funds to make emergency grants to students to cover expenses related to the disruption of campus operations, those students must be eligible to receive emergency grants under CARES. This means that international students, undocumented students, and DACA students are ineligible.
For more information and resources on how the spread of the novel coronavirus is impacting student financial aid, please refer to NASFAA's COVID-19 Web Center.
Publication Date: 5/21/2020