Judge says US is delaying education aid for noncitizens

A federal judge overseeing a challenge to the U.S. Department of Education's eligibility requirements for students to receive emergency coronavirus aid accused a Justice Department attorney Tuesday of trying to delay proceedings.

"It seems like you're putting roadblocks up with the distribution of money," U.S. District Judge Yvonne Gonzalez Rogers said.

At issue was the DOJ's argument that the case should not be considered until a final rule on the relief is announced. Justice Department lawyer Andrew Zee told the judge she would benefit from "a more wholesome explanation" of the agency's decision to be issued around June 15.

California's community college chancellor Eloy Oakley and five college districts sued Education Secretary Betsy DeVos in June, claiming she illegally placed restrictions on aid intended to help students with additional costs throughout the Covid-19 pandemic.

Under the rules, only students eligible for federal financial aid qualify. Students in the country without legal permission and those with Deferred Action for Childhood Arrival status are barred from accessing the relief.

Roughly 2 million students are enrolled in the state's 114 community colleges. More than 800,000 students are ineligible for the aid, according to Oakley.

In the Coronavirus Aid, Relief, and Economic Security Act, Congress directed the Department of Education to distribute $14 billion to colleges from the newly-created Higher Education Emergency Relief Fund. The agency originally indicated colleges would have broad discretion to use the money.

But DeVos changed course in April when she issued guidance on how colleges could spend the money. Eligibility for the aid was tied to Title IV of the Higher Education Act. The criteria includes providing a Social Security number and being a U.S. citizen or permanent resident.

The agency further clarified on Tuesday its position that relief would be "limited to those individuals who are or could be eligible for Title IV assistance," according to court filings.

Plaintiffs want the federal judge to set aside the new rules and allow the colleges to distribute the funds as they please. Oakley v. DeVos, 20-CV-03215 (N.D. Cal., filed May 11, 2020).

During the Tuesday Zoom video hearing on a motion for a preliminary injunction, Rogers grilled the Justice Department attorney over why it has not issued a final rule. Congress charged the Department of Education with making a final determination "on an emergency basis" because of increased costs for students as a result of school disruptions forced by COVID-19, the judge said.

"How is it that you haven't done this already?" she asked.

Zee replied that the process is time consuming since other agencies, like the Office of Management and Budget, have to get involved.

Rogers asked if there was any indication the final rules would change on the issue in dispute.

There's "no reason to believe that a different interpretation will emerge," the DOJ attorney responded.

If that's the case, Rogers said, it might be more appropriate to decide the case on a hearing for a permanent injunction. The department "could just waste and delay time," she said.

Rather than having a decision that might need to be reconsidered, Zee offered that plaintiffs could enter into a stipulation guaranteeing that the department would not enforce rules in the prior guidance. He said that would allow the colleges to distribute relief to ineligible students as long as they comply with other federal financial aid laws.

Representing the community colleges, California Department of Justice attorney Lee Sherman replied the stipulation is an attempt to reframe the case. The issue needs to be decided for colleges to budget for the future, he said.

"The subject of the litigation is not the guidance but the imposition of eligibility requirements and the Education Department's position over what is constitutionally applicable federal law," he said.