Evan Vucci/AP Photo
Education Secretary Miguel Cardona, left, listens as President Joe Biden speaks at an event honoring the 2021 state and national Teachers of the Year, on the South Lawn of the White House, October 18, 2021.
The Revolving Door Project, a Prospect partner, scrutinizes the executive branch and presidential power. Follow them at therevolvingdoorproject.org.
The Biden administration inherited a morass of understaffed and undermined federal agencies, weakened by the Trump administration. It makes sense that building back the government’s capacity would be an uphill battle for the Biden administration, with so many years of policymaking undermined by his predecessor. What doesn’t make sense is the jarring number of cases in which the administration is going out of its way, at considerable cost, to uphold Trump-era policies that go against Biden’s stated agenda and the public interest.
The Department of Education’s recent filing in the lawsuit AFT v. DeVos is a case in point.
Back in 2014, Obama’s Department of Education passed the Gainful Employment (GE) rule, which denied federal funding to higher-ed programs that saddled students with debt they couldn’t afford to repay. The GE rule applied to most programs at for-profit colleges, and less-than-degree programs at nonprofit colleges. Its underlying premise was that if a program provides training and not a degree, that training should help students secure jobs with high enough pay to afford their student loan debts. The GE rule denied federal funding to institutions whose graduates spent on average more than 12 percent of their annual income, or 30 percent of their discretionary income, on student loan payments.
In July 2019, Betsy DeVos—Trump’s notoriously anti-student secretary of education—repealed the GE rule. This was one of many moves she made to weaken the Department of Education’s protections for students. In January 2020, the borrower advocacy organization Student Defense sued DeVos as secretary of education on behalf of the American Federation of Teachers (AFT), a union of 1.7 million teachers, and two current teachers/prospective students who allege that they don’t have the information they need to avoid fraudulent certification programs without the mandatory disclosures under the GE rule.
One year later, the Biden administration and the new secretary of education, Miguel Cardona, inherited this lawsuit, and with it, a ready-made opportunity to quickly get rid of the Trump-era repeal. Rather than settling and restoring stronger protections for student borrowers, however, the Department of Education—and the Department of Justice arguing on its behalf—are fighting to preserve DeVos’s repeal of the policy.
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This flies in the face of Biden and Cardona’s priorities, and contradicts their other actions cracking down on for-profit schools that defraud students. In October 2021, the Department of Education resurrected the Obama-era student-aid enforcement unit that the Trump administration dismantled. The department also settled a different case with AFT, agreeing to review tens of thousands of denied applications to the historically dysfunctional Public Service Loan Forgiveness program. In the month since that settlement, over 10,000 borrowers in the PSLF program have already seen $715 million in student debt erased. Cardona estimates that the policy change will reach 30,000 borrowers and result in $2 billion in forgiven debt. This kind of decisive action with tangible results is readily available to the Department of Education and Department of Justice.
But while DeVos may be gone, defenders of her legacy remain as acting officials in the administration, stymieing consistency and progress on Biden’s agenda.
Brian Boynton, the acting head of the DOJ’s Civil Division, is one such hindrance. The catchall division has sweeping litigation responsibilities. One of Boynton’s first moves as head of the Civil Division was to block the lawyers representing 160,000 former for-profit college students from compelling Betsy DeVos to testify about her (mis)handling of loan forgiveness for defrauded students. (A federal judge rejected this “joint effort by DeVos and the Biden administration” to impede DeVos’s testimony three months later.)
For his part, Boynton has shuttled back and forth between the DOJ and BigLaw firm WilmerHale over the past two decades. At WilmerHale, he represented predatory for-profit colleges in numerous cases, and sued the Obama Department of Education for seeking to regulate them. In 2010, Boynton co-authored a WilmerHale memo arguing that the Education Department didn’t have the statutory authority to impose the Gainful Employment rule. Now he’s intervening in this case, and making good on his decade-old disdain.
Last week, the student plaintiffs filed a statement in partial opposition to Boynton and the Education Department’s request for “remand without vacatur,” which means sending the repeal back to the department for further changes, but without vacating or voiding the repeal. This would keep DeVos’s repeal intact indefinitely while the department pursues further rulemaking. The plaintiffs argue that remanding with vacatur, which would void the repeal and reinstate the rule, is the appropriate remedy—and the only immediate way to protect students.
The Department of Education’s arguments for refusing this remedy are weak and at times unsupported. It is troubling that the department would use its weakened capacity, for example, as an excuse for inaction rather than a necessary hurdle to overcome in order to better execute its duties. Since the department has implicitly conceded the flaws of the repeal, it all feels like a stalling tactic, especially with the unconfirmed Boynton, the for-profit college industry’s former lawyer, in a power position.
To be clear, the service of acting officials in top roles is unavoidable and in itself not inherently a problem. In some cases—such as if an opposing Senate majority refuses to hold votes on a president’s nominee—the White House can and should govern for years with an administration of acting appointees. But presidents can also misuse acting officials.
Boynton isn’t the only one standing in the way. Recently confirmed Undersecretary of Education James Kvaal submitted a declaration in support of keeping the repeal in place until new rulemaking occurs. It’s quite an about-face for Kvaal, who in a 2019 op-ed defended the Gainful Employment rule against DeVos’s repeal.
Kvaal argues that modifying the department’s systems to make implementation of the GE rule possible again would take as much time as new rulemaking. The student plaintiffs refute that claim on several grounds, arguing that Education “ignores numerous aspects of the Rule that neither require earnings data nor have any hurdles to immediate implementation,” and which would immediately benefit students if restored.
This case is emblematic of a broader lack of urgency in the Biden administration when it comes to executive action. As legislation stalls, it’s more important than ever that this administration make full use of its vast range of executive branch tools to advance its agenda. Yet faced with officials like Boynton who repeatedly and overtly undermine that agenda, Biden has often failed to intervene. Boynton’s authority in the Civil Division, which itself has broad influence in other government agencies and divisions of the DOJ, will continue to hamstring the administration’s agenda until Biden nominates, and the Senate promptly confirms, his replacement. Students are just one of many groups whose well-being is bartered for profit when officials put industry agendas first.
This article has been updated to reflect that the American Federation of Teachers is no longer an active participant in the ongoing litigation.
