Attorney General James Calls on Trump Administration to Stop Punishing Students Suffering from COVID-19 Economic Impact

Education Dept.’s Restrictions Will Deny Students Billions in
Emergency COVID-19 Relief Already Granted by Congress

NEW YORK – New York Attorney General Letitia James today led a coalition of 19 attorneys general from around the nation in urging the U.S Department of Education and Education Secretary Betsy Devos to release federal funds earmarked for students suffering from the devastating economic impact of the coronavirus disease 2019 (COVID-19). When Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act in March to help boost the economy in response to COVID-19, they appropriated more than $30 billion to the Department of Education to help students and schools facing unprecedented financial, logistical, and educational challenges. But, although the CARES Act clearly placed very few restrictions on students obtaining these funds, the Department of Education released new rules that go out of the way to prohibit thousands — if not millions — of foreign students studying in the U.S. from being eligible to receive these funds. In a comment letter to the Secretary DeVos and the Department of Education, Attorney General James and the coalition urge the Department of Education to immediately release the funds as the CARES Act intended and limit the harm to students and schools nationwide.

“In a matter of weeks, the Trump Administration has twice tried to use the coronavirus as a cruel and heartless excuse to kick the most vulnerable international students out of the country,” said Attorney General James. “Not only did the president try and use student visas to implement his xenophobic agenda, but now he’s holding emergency funds hostage in an effort to squeeze these students out. Without a doubt, this rule undermines the fundamental purpose of the CARES Act and exacerbates the economic harms our students are facing because of COVID-19. Congress clearly allocated these funds to help all students struggling economically as a result of the coronavirus, including international students, so our coalition will use every tool at our disposal to fight this illegal and manufactured rule that targets immigrants.”

On March 27, 2020, the CARES Act was signed into law to help address the social and economic impact of COVID-19 on workers, families, schools, and students. Among the many protections and benefits provided through this law was $30.75 billion to the Department of Education “to prevent, prepare for, and respond to coronavirus, domestically or internationally.” The law designated a portion of that funding towards the creation of the Higher Education Emergency Relief Fund (HEERF), which, in turn, required 90 percent of its money to go to institutions of higher education, like colleges and universities. These colleges and universities were granted wide discretion in how to use the emergency funds, with the exception that at least 50 percent of funds were required to serve as emergency aid grants to students. The CARES Act placed no further limitations on the use of HEERF funds other than that institutions were required to report how they ultimately use the funds to Secretary Devos.

Despite these provisions, last month, the Department of Education implemented a set of criteria outside the bounds of the law for receiving emergency COVID-19 relief funds, claiming that because the CARES Act did not define the term “students,” it has the ability to define the term as being “limited to those individuals eligible for Title IV assistance.” Title IV of the Higher Education Act of 1965 authorizes programs that provide financial assistance to students to assist them in obtaining a postsecondary education at certain institutions of higher education. Under Title IV, valid criteria include but are not limited to: U.S. citizenship or permanent resident; a valid Social Security number; and registration with Selective Service (if the student is male). Title IV also requires that students be enrolled in for-credit courses, have a “C” average or greater by the end of their second year, and not be in default on any federal student loan or owe any amount on a federal student grant.

In today’s comment letter, Attorney General James and the coalition argue that Congress did not impose any of Title IV’s eligibility restrictions on HEERF grants for students in the CARES Act or delegate such authority to the Department of Education, much less do so “unambiguously” — in violation of both the Spending Clause of the U.S. Constitution and the CARES Act itself. Further, when asking Congress to allocate funds in the CARES Act, the Department of Education calculated the amount of HEERF funding for each institution based on the institution’s full number of “students,” without any consideration of a student's eligibility under Title IV or their citizenship status, despite the Department of Education’s attempts now to redefine the term “student.”

Additionally, the coalition argues that the Department of Education’s new rules place numerous logistical and economic hurdles on institutions of higher learning across the country in stark contrast of what the CARES Act was created to help end. Specifically, the rule forces these institutions to come up with extra funds to provide for excluded students at a time when their cash flow is evaporating, and state budget cuts increase costs. Across the country, institutions of higher education expect billions in losses due to COVID-19, which will only be compounded by this rule’s effect on international student disenrollment — and, therefore, more revenue losses. Attorney General James and the coalition conclude the letter by urging the Department of Education to follow the true intent of the CARES Act and help a myriad of students pay for food, shelter, transportation, tuition, and course materials, instead of just letting funds sit in institutional coffers.

Joining Attorney General James in sending today’s letter to the Department of Education are the attorneys general of Colorado, Connecticut, Illinois, Iowa, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Pennsylvania, Vermont, Virginia, Washington, Wisconsin, and the District of Columbia.

This matter was handled by Assistant Attorney General Daniela L. Nogueira and Chief Counsel for Federal Initiatives Matthew Colangelo, both of the Executive Division; as well as Deputy Bureau Chief Elena Goldstein of the Civil Rights Bureau — all under the supervision of First Deputy Attorney General Jennifer Levy.