Would a Biden Education Dept. Be More Aggressive Than Obama's?

Talk to higher education experts about what the Education Department could do under a Biden administration, and they expect, at the least, another volley of the match that would stretch through three presidencies.

The Obama administration enacted regulations making it easier for people who had been defrauded by for-profit colleges to have their student debt forgiven and to hold institutions, particularly for-profits, accountable if graduates do not find jobs that pay well enough to repay their student debt.

U.S. Education Secretary Betsy DeVos canceled both the so-called borrower-defense and gainful-employment rules, as well as another Obama administration guidance telling colleges to crack down on sexual harassment on campuses.

But if Biden, Obama’s vice president, wins the election, now barely more than a week away, he’s expected to bring those rules back.

“There’s a huge mess [that] they’re going to have to hit the ground running and clean up,” said Amy Laitinen, a higher education policy adviser under the Obama administration, now with the left-leaning think tank New America.

In a call with education reporters Thursday, Stef Feldman, the Biden campaign's policy director, seemed to downplay what actions he might take through executive order, noting instead that he has a "strong record of working across the aisle to get action done … I'm confident Vice President Biden will be able to get big, bold legislation passed."

She wouldn't say if he would cancel student debt through an executive order. Feldman did say Biden would bring back the borrower-defense rule, as well as undo DeVos's reversal of the Obama administration's crackdown on campus sexual assault and harassment. She said also that Biden would require for-profits to demonstrate their value to students in order to be able to receive federal student aid dollars.

However, a number of higher education experts, including former members of the Obama administration, have been urging Biden to go further than restoring the rules DeVos has rolled back. And there's reason to believe he would if he wins, as part of a shift in the department's approach on a number of issues, particularly in its attitude toward for-profit institutions.

In recent weeks, Daniel Zibel, the Education Department’s deputy assistant general counsel for postsecondary education in the Obama administration, has been calling on the potential new administration to push the bounds further than the department has gone before on what they believe the nation’s higher education law allows it to do.

In a series of policy papers, Zibel and others at the National Student Legal Defense Network, an advocacy group he co-founded, have urged a Biden administration, without going to Congress, to unilaterally cancel the student debt of those whose colleges have closed and of all those who have been defrauded by their institutions. They have also urged the administration to cancel the debt of borrowers with disabilities and make the owners of for-profits that defrauded students financially liable for all forgiven debts and other costs to the federal government.

Zibel and Aaron Ament, the group’s president and chief of staff of the Education Department’s general counsel’s office under the Obama administration, also wrote that a Biden administration could use its powers to promote equity at colleges receiving federal student aid dollars, including increasing the number of lower-income students by requiring them to enroll Pell Grant recipients at the same rate as those whose families make too much to qualify for the program.

They would be aggressive acts. Biden, while saying he’d bring back borrower defense or a version of the gainful-employment rule, hasn’t talked about going that far, much less without involving Congress. And higher education experts, including Zibel and other former Obama administration officials, do not know if he would.

But they think his Education Department could be even more aggressive, particularly in cracking down on for-profits, than even under the Obama administration.

Prominent Democratic senators have urged the next administration to be aggressive. Senator Elizabeth Warren, of Massachusetts, backed putting owners of for-profit colleges on the hook if graduates cannot pay back their loans. Senator Dick Durbin, of Illinois, the Senate’s second highest-ranking Democrat, has endorsed canceling the debt of those whose colleges have closed or who have been defrauded. Senator Chris Coons, from Biden’s home state of Delaware, backs forgiving the loans of disabled people.

Zibel, in an interview, said the Education Department in a Biden administration could go beyond the Obama administration's, because concern has grown during the pandemic that some for-profits could, as they did during the last recession, aggressively recruit students with promises of lucrative jobs that do not materialize and leave them deep in debt.

“There’s a real desire to see what we can do about this, take a hard look at the legal authority the department has, and how we can use it,” he said.

Acting alone would allow Biden to get around a Republican Senate. Even if Democrats take control of both houses of Congress, it will have a full agenda, particularly in the midst of the pandemic.

“There’s a lot to do in the country right now, and the department doesn’t have to wait for Congress to act. Congress has already given the department the authority under the Higher Education Act,” Zibel said.

James Kvaal, deputy domestic policy adviser in the Obama administration and now president of the Institute for College Access & Success, didn’t mention stretching the limits of the law during a webinar this week, sponsored by Whiteboard Advisors, a strategic communications and consulting firm, on what a Biden administration could bring. But he also said a Biden administration could be more aggressive in policing for-profits than the Obama administration.

A Biden administration, he said, would have a better understanding of how the tactics of some for-profits hurt students than the Obama administration did.

Kvaal also pointed to Democratic vice presidential candidate Kamala Harris, who has talked during the campaign about prosecuting for-profits when she was California state attorney general. “Senior leadership didn’t have that firsthand experience with for-profits” during the Obama administration, he said.

Jordan Matsudaira, who worked on the 2014 gainful-employment and borrower-defense rules while chief economist on the Obama administration’s Council of Economic Advisers, said he could imagine a Biden administration taking strong measures like holding owners of for-profits financially liable for the loans of defrauded borrowers and other costs to the government.

“Especially if we see increases in the kinds of abusive recruiting/lending/etc. practices by for-profits as this economic crisis deepens, I imagine the administration will want to resort to all the arrows in its quiver to prevent the damage done to students by the sector that we saw in the Great Recession,” said Matsudaira, a Columbia University associate professor of economics and education policy.

Whether the administration would further toughen the gainful-employment rule, which threatens to bar institutions from getting federal student aid dollars if graduates have to spend too much of their income on loans payments, could depend on the economy, he said.

The National Student Clearinghouse Research Center said last week that as of Sept. 24, enrollment at for-profits is 3 percent higher than last fall, in comparison to a 4 percent decline in all undergraduate enrollment.

If it looks like for-profit enrollment is rebounding as the economic crisis deepens, “there (I hope) will be urgency in enacting protections to limit the kind of damage we saw from the Great Recession when enrollment soared and waves of defaults followed, concentrated amongst minority/low-income borrowers,” Matsudaira wrote.

But if the labor market worsens, he said, it could “be seen as tone-deaf to pursue strong accountability policy in that environment,” he said. In that case the administration might decide to bring back the Obama gainful-employment rule, instead of toughening it with more measures like repayment rates that could lead to more institutions being snared by the rule.

Beth Stein, a TICAS senior adviser and former Senate education committee counsel, noted that the Obama administration was also moving toward taking more aggressive action against for-profits by creating a financial aid enforcement unit in the department.

But more broadly, she said she was expecting a culture shift in the department, with aides coming in focused on issues like making college more affordable. And driven by examples like Warren’s creation of the Consumer Financial Protection Bureau, there is a greater sense among those who’d go to work for a Biden Education Department that agencies need to find a better balance between their traditional focus of working with those they regulate -- like colleges -- and protecting consumers. For the Education Department, that would be students.

After the support DeVos has shown for-profits, Stein said, “it’s hard to imagine an agency that’s going to have a more 180-degree change” under a Biden administration, she said -- other than perhaps the Environmental Protection Agency.

“The approach is going to be different with folks coming in who are more student-centered and focused on affordability at colleges,” Stein said.

That sense could manifest itself in ways other than creating new regulations, said Michael Itzkowitz, senior higher education policy fellow at the centrist think tank Third Way, who directed the College Scorecard during the Obama administration.

He said the Education Department this summer quietly changed the influential site, which has a search engine to help prospective students find information about schools.

Instead of the default search being set to show colleges in order of the percentage of graduates earning more than those with only a high school degree, it shows them in order of their graduation rate.

It’s a subtle difference, but the result favors for-profit colleges and de-emphasizes whether graduates can actually find jobs, he said.

“It was done in the dark of night,” he said.

The department also removed some information when viewers click on a particular college, including how likely it is that graduates will be able to repay student loans, and how the salaries they earn after college compare with earnings of those who have only a high school degree. Deleting that information also favors for-profits and deprives prospective students of valuable information, he said, while acknowledging that, as the department asserts, DeVos had added more information to the site as well.

“It seems like more than a coincidence that DeVos would remove information harmful to for-profits,” Itzkowitz said, predicting a Biden administration would change the Scorecard back.

The department under Biden could take a range of other actions, the experts said. The department could close a 2011 loophole that allows colleges to use some federal student aid dollars for commissions and other bonuses to attract students, said Bob Shireman, deputy under secretary of education in the Obama administration, now director of higher education excellence and senior fellow at the Century Foundation.

The Higher Education Act prohibits colleges from using money from aid in for pay incentives to recruiters or those working in admissions. But the loophole allows colleges to pay contractors for those purposes to provide commissions, as long as they are bundled with other services being provided.

“Tempted by the loopholes, schools revved up the recruitment engine, promising high salaries to enrollment advisers not with a background in education but instead with experience in sales,” Shireman told a House education subcommittee last year. “Incentivizing advisers to do whatever is necessary to make a sale is a way of getting employees to use psychological tricks or shade the truth to enroll students, without the company getting its hands dirty,” he said.

A harder line against for-profits would be no surprise to Steve Gunderson, president of Career Education Colleges and Universities, which represents the colleges. If Democrats take political control, the result would be "a new wave of ideological opponents at the Department of Education seeking to reverse positive changes in policy over the past four years," Gunderson wrote the group’s members in August. He has argued that singling out the for-profits is unfair, a charge Mary Clare Amselem, policy analyst for the conservative Heritage Foundation, agrees with.

The Obama administration's borrower-defense rule had a “shockingly low” burden of proof for borrowers to claim they were defrauded and should have their debt canceled, she said.

Biden has also said he would change a rule that, according to critics, gives for-profits incentive to recruit members of the military and veterans.

That, Amselem said, “is merely another example of Washington using their regulatory powers to pick winners and losers in higher education. If regulations are to exist, they should be sector-neutral in their application. Everyone should play by the same rules.”

Beyond those issues, policy experts also see the possibility of a cultural shift in how the department acts toward higher education. The Education Department under Trump, critics say, have been antagonistic toward colleges as the administration has played to a base of supporters who are more likely to not have gone to college and see those in higher education as elitist.

The Education Department, for instance, angered many college leaders in September when it announced an investigation into whether Princeton University has violated civil rights laws when its president acknowledged as part of its reckoning on race that systemic racism is a problem on the campus as well as in the rest of society. The move was seen as bullying a university trying to honestly address racism in the wake of the protests over George Floyd’s killing.

Biden, though, is expected to see higher education in a better light, particularly community colleges. He has pledged to make them an integral part of a $50 billion initiative to expand workforce training, to create a grant program to improve their retention and graduation rates, and to double the size of Pell Grants and allow students to use them to pay for living expenses.

“Only one of the presidential candidates lays his head at night next to a community college professor,” said Seth Harris, acting labor secretary under the Obama administration during the Whiteboard Advisors webcast. Biden’s wife, Jill, is an English professor at Northern Virginia Community College, who reportedly plans to return to the college even if she becomes the First Lady.

“I think we’ll see a big shift in the way a Biden administration works with colleges like Princeton to encourage -- rather than punish -- more schools to explore ways to address racial inequities on campuses,” said Tamara Hiler, Third Way’s director of education policy.

A Biden administration would mean a shift in the department’s stance in the so-called campus culture wars. “There’s going to be a huge change in the civil rights space,” Stein said, noting the Obama administration’s guidances that considered diversity in college admissions and addressed sexual assault on campuses.

The Obama administration issued a guidance in 2011 saying that diversity is an important educational goal, and that colleges should be able to use a variety of methods (including the consideration of race and ethnicity in admissions) to achieve diversity. While nonbinding, it signaled that the administration would back universities’ use of race in making admissions decisions if there were a complaint against it. DeVos rescinded the guidance in 2018.

But asked if Biden would drop a Justice Department lawsuit against Yale University, Feldman, his policy director, said she hadn't talked to him about the issue. "I do know Biden has a long-standing record of supporting affirmative action because he feels it's good for students, and all of us, and all of our country."

In resurrecting the Obama administration’s push to crack down on sexual assault on campuses, he would among other things restore Education Department guidances requiring colleges to “end any harassment, eliminate a hostile environment if it has been created, and prevent harassment from occurring again.” The administration also required colleges to use a lower “preponderance of evidence” standard in disciplinary hearings for harassment, and discouraged the use of live hearings and cross-examination of alleged victims. DeVos eliminated the guidance, saying it was unfair to the accused.

Rebecca Natow, a Hofstra University assistant professor in educational leadership and policy, said a Biden administration could also allow undocumented students brought to the U.S. illegally as children to begin receiving federal student aid.

One area, though, where higher education experts are unclear is how far Biden would go to cancel student debt.

Biden has pledged to forgive all undergraduate tuition-related federal student debt from two- and four-year public colleges and universities for debt holders earning up to $125,000. He would also cancel a minimum of $10,000 in debt for each borrower during the pandemic.

For what debt is left, he would excuse borrowers making less than $25,000 a year from making payments, with no interest accruing. He’d also reduce the minimum payments for those making more than $25,000 from 10 or 20 percent of discretionary income to 10 percent, with no interest accruing. Whatever balance is left after 20 years would be forgiven.

Biden hasn’t said whether he would go to Congress or resolve the debt with a swipe of his pen. And even some progressives, while predicting Biden will cancel some debt, argue widespread relief would help those who do not really need help, while taking potentially $1 trillion from other needs.

But advocates of debt cancellation are urging him to act through an executive order, as Warren and Senate Minority Leader Chuck Schumer have urged.

Warren and Schumer, the Senate’s top Democrat, in September called on the next president to cancel $50,000 in federal student debt from all borrowers, a move that would completely eliminate the balances of 75 percent of all borrowers.

“There would be a giant sigh of relief from one side of America to the other,” Schumer said during a call with reporters.

“This isn’t about passing a new law,” Natalia Abrams, executive director of the advocacy group Student Debt Crisis, said at the time. “Student debt cancellation is about using existing law to help so many who are suffering the consequences of the broken and inadequate ways we finance higher education, and also about closing the persistent racial wealth gap.”

But in a sign the Biden campaign understands its importance to many progressives, it partnered with Abrams’s group and with Savi, which offers borrowers advice, in an online campaign rally Wednesday night.

Former Democratic presidential candidate Andrew Yang urged voters to support Biden on the Zoom rally, saying he'd reduce their debt. Yang said he'd had student loans, "and it changes your life."

"When the bills start coming in, you realize, 'Wow. That's a lot of money. What am I going to do?'" he said. "So many have had their aspirations crushed by student loans."