Must testify in lawsuit

Judge rules DeVos must testify in lawsuit over student loan forgiveness

A federal judge ruled that “exceptional circumstances” justify the rare deposition of a former Cabinet secretary.

By MICHAEL STRATFORD

A federal judge on Wednesday said that former Education Secretary Betsy DeVos must testify in a class-action lawsuit over her handling of student loan forgiveness claims, ruling that “exceptional circumstances” justify the rare deposition of a former Cabinet secretary.

Judge William Alsup rejected the joint effort by DeVos and the Biden administration to prevent her from having to testify in the case. The lawsuit is being brought on behalf of roughly 160,000 borrowers who applied to the Education Department for loan forgiveness, on the grounds that they were defrauded by their for-profit colleges.

Alsup, a Clinton appointee in the Northern District of California, ruled that DeVos must sit for a three-hour deposition in which attorneys for the student borrowers may question her under oath about the decisions she made regarding the loan forgiveness program.

The Trump administration stopped issuing final decisions on the student borrowers’ claims — known as borrower defense applications — for at least 18 months, and then swiftly dismissed large swaths of claims with little explanation provided to each borrower. The Trump administration said it needed this the time to figure out its policy and issue reasoned decisions on borrowers' claims.

The freeze in the program happened as DeVos was taking a series of policy steps designed to cut the amount of debt relief that defrauded borrowers can receive under the program. She criticized the Obama administration’s more permissive approach to approving loan forgiveness claims as allowing students to tap into “free money” from the government.

Alsup previously ruled that there was a “strong showing” that the Trump administration lied about its actual reason for effectively halting the program and then churning out so many rejections.

In his 12-page decision Wednesday, Alsup said that those questions about the credibility of the Trump administration’s explanations and “sparse” documentation of its decision-making were among the “extraordinary circumstances” that warranted DeVos’ testimony.

Alsup also said it was clear that DeVos had personal involvement in decisions about the student loan forgiveness claims. Previous depositions of other high-ranking Education Department officials still left “material gaps” in the record, Alsup wrote, because those officials said they did not know who had made the decision to pause the program.

DeVos and the Biden administration had both asked the judge to block the subpoena for her testimony.

DeVos’ personal attorney had argued that it would unduly burdensome and unprecedented for her to testify in the lawsuit. The Biden administration's position is that former Cabinet secretaries like DeVos should generally be immune from having to answer questions under oath about their official actions while in government service.

But Alsup maintained that Cabinet secretaries are still subject to the law. He cited a range of historical precedents for top executive branch officials being forced to respond to subpoenas, including President Richard Nixon having to turn over White House tapes as part of the Watergate scandal and President Bill Clinton having to sit for a deposition in the Paula Jones sexual harassment lawsuit that ultimately led to his impeachment.

“If judicial process runs to presidents, it runs to Cabinet secretaries — especially former ones,” Alsup wrote.

Alsup put his order on pause for two weeks to allow for an appeal of his decision. He also set another hearing in the case for June 3.

Separately, DeVos has asked the Georgia-based 11th Circuit Court of Appeals to intervene to block the subpoena after a three-judge panel of the court rejected her request earlier this month. DeVos in that case is appealing a lower court’s ruling in Florida that sent the subpoena fight to Alsup in California in the first place.