Judges have rebuffed the education secretary

Betsy DeVos strikes out — in court

Judges have rebuffed the education secretary’s attempts to pause or change a range of Obama-era policies.

By MICHAEL STRATFORD

Education Secretary Betsy DeVos’ attempts to swiftly roll back major Obama-era policies at her agency are hitting a roadblock: 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.

The Obama Education Department also faced legal setbacks to its regulatory agenda. A federal judge dealt a blow to the Obama administration’s first attempt to tighten regulations on for-profit schools and other career colleges, which officials rewrote during Obama’s second term. The Obama administration was similarly forced to redo another set of rules governing online college programs after a federal judge tossed them out. More recently, a federal judge found that the Obama administration’s decision to terminate a large accreditor of for-profit colleges illegally failed to properly consider tens of thousands of pages of evidence.

The Trump administration welcomed that decision, immediately reinstating the college accreditor.

And the Trump Education Department, to be sure, has also had some victories in court. A federal judge last year dismissed most of a lawsuit brought by advocacy groups challenging DeVos’ new guidance for how colleges must address sexual assault.

But the Trump administration overall has been on a particularly noteworthy losing streak in the courts, according to a Washington Post report this week that analyzed data maintained by the Institute for Policy Integrity at New York University School of Law.

The legal setbacks to DeVos’ efforts to stop Obama-era policies at the Education Department also come as the Trump administration has faced a well-organized coalition of consumer groups, state Democratic attorneys general and oversight organizations run by many Obama administration alumni, all of whom are focused on challenging the Trump administration’s agenda at every turn.

“This administration likes to pretend the rules don’t apply to them,” said Aaron Ament, a former Education Department official during the Obama administration who has brought legal challenges against DeVos as head of the National Student Legal Defense Network.

“The Administrative Procedures Act does not say ‘check with your corporate supporters, and do whatever they ask,’” Ament said. “As long as DeVos keeps on acting based on political expediency instead of what’s best for students, she’ll keep getting challenged and she’ll keep losing in court.”