Citing Ongoing Rulemaking Process, ED Reiterates Call for Court to Toss Out Aid Distribution Challenge

By Hugh T. Ferguson, NASFAA Staff Reporter

The Department of Education (ED) in its latest court filing, has called for a federal judge to disregard a lawsuit challenging its implementation of emergency grants from the Coronavirus Aid, Relief, and Economic Security (CARES) Act, because ED’s “rulemaking process remains ongoing.”

This most recent response to a lawsuit filed by Washington state’s attorney general follows a legal challenge filed by the California Community Colleges System, both of which stem from ED’s guidance and subsequent update on how to distribute emergency grant funds that, among other things, excluded students in the Deferred Action for Childhood Arrivals (DACA) program. 

Many in the higher education community, including NASFAA, have expressed concern that in its attempt to box out DACA students, 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.

ED previously pledged to issue additional guidance following the California Community Colleges System case and now accuses Washington of rushing the process in their unwillingness to see the ED’s process play out.

“Rather than see what rule the Department ultimately promulgates, Washington has rushed to Court challenging preliminary guidance that the Department posted on its website on April 21, 2020, less than a month after the CARES Act was enacted,” the legal document read.

Additionally ED argues that Washington’s effort to paint its guidance rollout as improper is a challenge to the department’s interpretation of statutory language, “an interpretation that has not been set forth in any final agency action properly subject to review under the Administrative Procedure Act (APA),” the legal document read.

The legal filing further argues that any ruling against ED, “would profoundly harm the Department and the public interest by cutting short administrative deliberations on an important and time-sensitive matter.”

A hearing has been scheduled for June 11 and it is unclear if, or when, ED will issue additional updates on guidance or the rulemaking process. The language in the memo also suggests that ED may engage in a more formal rulemaking process, though ED has not expressly stated that it intends to do so. 

Additionally, a hearing for the California Community Colleges System legal challenge is set for June 9.

Correction 6/11/20: This article originally misstated the date of the hearing in Washington's lawsuit against ED.


Publication Date: 6/8/2020

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