For many weeks, higher education leaders have pressed the U.S. Department of Education to spell out which students can get federal coronavirus relief funding. 

But those expecting clarity early this week were left disappointed. The department initially indicated it would release an “interim final rule” as soon as Tuesday that would dictate which students could receive emergency grants under the Coronavirus Aid, Relief, and Economic Security (CARES) Act. 

But no regulation materialized by early evening Tuesday, and according to court filings, one won’t likely be published until at least June 15. 

“This creates a whole trust issue between colleges and the department,” said Patricia McGuire, president of Trinity Washington University, in Washington, D.C. “It’s terrible. It’s no way to run a government or a country.”

This emergency regulation would carry the force of law, unlike previous department guidance that barred unauthorized and international students from receiving the funds. That move was deeply unpopular among institutional leaders and Democratic lawmakers. Department officials later said the decision was legally unenforceable, spurring confusion among colleges.

The CARES Act earmarks more than $6 billion for colleges to provide grants to students disadvantaged by the coronavirus. Shortly after Education Secretary Betsy DeVos announced on April 9 that the department would start to allocate the grant money, colleges began asking the department to clarify potential limits on the funds. 

Congress, in the legislation, didn’t prevent certain students from receiving grants. But the department announced on April 21 that it would block unauthorized immigrant students — including those participating in the Deferred Action for Childhood Arrivals (DACA) program — from getting them.

By that time, the department had already given some colleges their grant funding. 

The department reasoned that Congress intended only for U.S. citizens to get the funds, though Democrats immediately pushed back on the assertion. At the time, department spokesperson Angela Morabito cited federal student aid programs that the CARES Act mentions briefly as the agency’s justification for the guidance. 

One provision Morabito flagged simply lays out that the money will be distributed through the same system as Title IV aid.

“They’re basically saying any reference to Title IV suggests only Title IV students should get the money, which requires a very creative read,” Clare McCann, deputy director for federal higher ed policy at left-leaning think tank New America, told Education Dive in April.

The department followed up in May with a notice on its website stating that the “guidance documents lack the force and effect of law.” It also referenced portions of the U.S. Code that prevent some immigrants and non-U.S. citizens from getting public support, further muddying whether unauthorized students were eligible for grants. 

The waiting game

Institutions have been eagerly awaiting more communication from the department since it said the guidance wasn’t enforceable, said David Baime, senior vice president for government relations and policy analysis for the American Association of Community Colleges. With the regulations delayed, “institutions remain in a position of having to interpret the statute as they see fit in order to make funds available to students,” he said.

“The continued conflicting signals that the institutions are receiving just works against needy students,” Baime added.

DeVos has previously said she wanted to get the money to students quickly.

“What’s best for students is at the center of every decision we make,” DeVos said in an April statement. “That’s why we prioritized getting funding out the door quickly to college students who need it most. We don’t want unmet financial needs due to the coronavirus to derail their learning.”

Morabito wrote in an email Tuesday that the department “has moved quickly to get resources and information to students and institutions.”

“It’s true that guidance is not legally binding — so we issued guidance rapidly and are now in the rulemaking process to make key provisions legally binding,” she wrote. 

Some states have not waited for clarification. California’s community colleges and Washington state separately sued DeVos and the department over the restrictions on which students can get grants. 

Court records filed Tuesday in the California case state that the department’s interim final rule hasn’t been finalized and officials do “not expect it to be ready for publication before June 15, 2020, at the earliest.”

But there are indications the department will double down on its position that only Title IV-eligible students can get grant money. 

In a department document dated Monday, the agency defines a grant-eligible student as one who qualifies for federal aid under Section 484 of the Higher Education Act — the Title IV section of the law. 

Additionally, students will have to prove they are Title IV-eligible if they have not filed a Free Application for Federal Student Aid (FAFSA), the department wrote. Title IV eligibility is usually determined through the FAFSA.

Meanwhile, colleges are still struggling to support students, many of whom have lost their jobs or are having trouble paying for expenses. 

McGuire, Trinity Washington’s president, said the hangup is leaving many needy students waiting for help. 

Trinity Washington serves a low-income population. McGuire said about 80% of full-time students receive federal Pell Grants, a proxy for campus poverty. The median family income among students is about $25,000 a year, she said.

About one-tenth of the student body — which numbered 1,782 as of fall 2018, according to federal data — are DACA recipients, McGuire said. After the department announced DACA students couldn’t receive CARES grants, the university used private donations to pay for their aid, she said.

Although Trinity officials were able to quickly set up an alternative for DACA students, McGuire noted that other institutions trying to get the money to students rapidly were hamstrung by the department’s backtracking. 

“There’s a very serious competence problem,” McGuire said.

This article has been updated to include comments from the U.S. Department of Education.

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