Tuesday, May 26, 2020


A liberal Democratic activist and her organization are running TV ads this week trying to convince President Trump to let Congress undo his own regulation at the Department of Education and reinstate an Obama regulation that would allow students to use the cover of the current pandemic to force colleges and universities to cough up money to which they are not entitled.

The ads are sponsored by “Veterans Education Success,” headed by Carrie Wofford, an activist President Obama once considered making his secretary of Labor. Ms. Wofford and VES don’t acknowledge that the president is already on record saying he will veto the measure if it comes to his desk — a promise made in a Statement of Administration Policy on Jan. 13 and reiterated in a May 19 executive order.

So the president is unlikely to undo his own regulation, regardless of how many television ads the group runs, but they’re doing all they can to convince him to do so or to get Congress to override his actions. Under the Congressional Review Act, Congress can override regulatory changes. The override measure in this case is House Joint Resolution 76. If it passes, the president will have 10 days to sign or veto it and vetoes can be overridden only by two-thirds votes in both houses. 

Like the Obama regulation, the Trump regulation allows students who are defrauded by universities’ misrepresentations to file claims so they can forgo payment of their student loans. The important difference between the Obama and Trump versions is that Mr. Trump’s reform provides due process rights to both students and institutions, so that the Department of Education can adjudicate legitimate claims from students who are truly harmed — based on the facts rather than arbitrary and sometimes frivolous claims dreamed up by politically motivated advocacy groups. 

Under the Obama rule, students in the coronavirus era who could not attend classes on campus and were forced to take makeshift Zoom classes would have legitimate claims against their schools because the Obama rule does not differentiate between willful misrepresentation and schools’ varied responses to the coronavirus. Great for trial lawyers, but bad for students and their schools.

Because of the Obama rule, advocacy groups are already encouraging a flood of claims, to be filed with the Trump Education Department. Absent the Trump reforms, the department would have had to assign stiff financial penalties to schools based on the maximum amount of potential loan forgiveness represented by the claims. Schools would have been required to post a letter of credit or face penalties even if the claims were ultimately found to be false.

As a former president and CEO of the Thurgood Marshall College Fund, Johnny C. Taylor Jr. summarized the problem in a letter to Congress on Jan. 15, 2020: “While the resulting new [Trump] rules are not perfect, they go a long way toward addressing the challenges of students and colleges. The HBCU [historically black colleges and universities] community had major concerns about the initial 2016 revisions because they placed all of the accountability on the schools and had a low threshold for punitive action … “The new rules provide flexibility for schools to make changes to their course offerings and graduation requirements based on costs, student interest and employer needs without being characterized as fraudulent. Now that nearly all of the major concerns raised by the HBCU Community were addressed by [Education] Secretary [Betsy] DeVos, it is time to pass the rules so we can put our collective energy into educating America’s diverse future workforce.”

This makes it difficult for advocacy groups to recruit students who will game the system for profit. If the Obama version of the rule was to actually be put back into effect, taxpayers and colleges and universities would lose millions of dollars for no logical reason. These costs could break many private institutions of higher learning since state schools already enjoy greater protection. Putting such institutions out of business and creating a crisis in higher education wouldn’t be good for students, but could be used to advance the progressive desire to provide free education for all — at government-run and controlled institutions.

Based on his earlier pledge, one would expect the president to veto H.J.Res.76 and the votes aren’t there for a veto override. That’s good news for private colleges and universities as well as the American taxpayer.

• Steven J. Allen is distinguished senior fellow at the Capital Research Center in Washington, D.C.

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