As part of the Trump administration’s scramble to enact last-minute rulemaking, Secretary of Education Betsy DeVos recently issued a new rule that makes it easier for Trump and DeVos to accelerate their cruel agenda and harder for future administrations to reverse the past four years of damage.
The rule became law on November 4, 2020—the day after the election. Last week, NWLC led 81 advocacy organizations in a comment calling upon DeVos to withdraw the rule. Here are three (of many) reasons why we oppose it:
Note on terminology: Agencies like the Department of Education can make policy by creating “rules” (which are laws) and “guidances” (which clarify how a rule will be enforced).
1. The rule makes it easier for Trump and DeVos to get rid of helpful education policies.
In less than four years, Trump and DeVos have already rescinded numerous education guidance documents, often with no prior notice to the public. The new rule now allows many more guidances to be rescinded with no notice to the public at all. DeVos can now simply remove many guidances from the department’s website without telling anyone—even if students, families, and schools have relied on them and found them helpful for years or decades.
2. The rule makes it harder for future administrations to create and keep helpful education policies.
It will now be extremely difficult for the department to create new rules or guidances. To issue certain types of new rules, department staff will now have to use “enhanced procedures,” such as hearings, that have not been required for more than four decades, that legal scholars overwhelmingly agree are obsolete, and that will disadvantage individuals who don’t have attorneys.
As for guidances, the new department position is to “disfavor” all guidances “except in special circumstances.” Certain types of guidances will also have to undergo new burdensome requirements that—until now—have only been required for legally binding rules. Although DeVos herself has enjoyed the ability to issue guidances without these procedural hurdles during the COVID-19 crisis, her new rule will make it all but impossible for a future secretary of Education to be flexible and nimble, even when students’ lives are at stake. This is particularly harmful right now, as students and schools continue to struggle with the unprecedented and unrelenting challenges caused by the COVID-19 pandemic and need timely and helpful guidance from the department, including guidance on how schools must continue protecting students’ rights during this time.
3. The new rule is deeply hypocritical.
The Trump administration has one of the worst track records for complying with federal law on rulemaking and guidance. In the last four years, it has lost or admitted defeat in 84% of lawsuits against its agencies’ policies—significantly more than any other administration. In one case, a court ruled against the Trump administration when it struck down a DeVos rule that would disproportionately give COVID-19 relief funds to private schools. In other cases, the administration withdrew its own policies after being sued, such as when ICE dropped a rule that would force international college students whose courses went entirely online due to COVID-19 to leave the country. With this abysmal track record, it is deeply hypocritical for the department to add new, needlessly burdensome procedures for rulemaking and guidance, when this administration has consistently violated existing requirements.
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While procedure can seem abstract, this new rule will directly and gravely impact the department’s ability to responsively issue rules and guidances on urgent education policy issues, including Title IX, student debt, and COVID-19 relief for schools. It is also inconsistent with other federal agencies’ procedures, making it harder for the department to collaborate with agencies like DOJ on enforcing students’ civil rights. We’re calling on Trump and DeVos to withdraw this rule because these new hurdles and inconsistencies are intended to—and will—tie the hands of future administrations from addressing the very real harms that directly affect students, families, and schools each day.
It’s a cruel policy, and our country deserves so much better.