DeVos Department Bars State Attorneys General From Key Panel
The Betsy DeVos Department of Education acted Wednesday morning to block a representative of state attorneys general from serving on a panel charged with negotiating wide-ranging new rules governing higher education. Although consumer advocates have shown that the new regulations would create opportunities for bad actors to engage in more waste, fraud, and abuse at the expense of students and taxpayers, and the state attorneys general have been at the forefront of providing protections against such misconduct, the Department used its vote to keep the AGs off the panel — even when all other negotiators, representing schools, accreditors, and other interests, were willing to accept a compromise that would add an AG lawyer as an alternate negotiator.
During the Obama and Trump administrations, the Department of Education had given state attorneys general a seat at the table for four separate rounds of negotiations on student protection rules, called borrower defense and gainful employment. AGs were also on the panel negotiating an Obama rule on state authorization of colleges, comparable to the rule being debated this week. But the DeVos Department did not include a slot for state AGs when last fall it announced its selected panelists for the new rulemaking.
The negotiations, which are required by law before the Department can issue a regulation, have become a bit of a charade in an era where higher ed fights are politicized and dominated by special interest money. There almost certainly won’t be consensus among the current negotiators, so the Department will be free to write its own rules, and in the Trump/DeVos era, the results have been consistently anti-student, anti-taxpayer, and tilted in favor of the worst predatory college actors. But negotiators on the panel can highlight issues for the public and Congress — and for judges that will review the rule in the event of a lawsuit to strike it down.
The top Democrats on both the House and Senate education committees, Rep. Bobby Scott (VA) and Senator Patty Murray (W), wrote to DeVos in October, urging her to add to the current panel both a representative of the state AGs and one from the state higher education oversight offices. They were ignored.
But negotiators are permitted to add panelists once the rulemaking meetings begin. It requires an unanimous vote.
On Tuesday, Christopher Madaio of the Maryland attorney general’s office appeared before the panel and earnestly made the case to include him, along with an alternate negotiator, Carolyn Fast of the New York AG’s office. Madaio’s application was supported by the panelist representing legal aid groups that assist students, Robyn Smith of the Legal Aid Foundation of Los Angeles.
In a debate that persisted over Tuesday and Wednesday, Smith fought politely but firmly for the need to include an AG representative. “The Department proposals would severely weaken both consumer protection and state oversight,” Smith said, adding that AGs play a role in both of those areas. Smith noted that the AGs had taken action against misconduct in online distance education, a topic that the rulemaking will address. Smith told her fellow panelists that she represents women, people of color, veterans, and others victimized by for-profit colleges; some of them owe more than $100,000 in student loans for worthless training programs.
But the deck was stacked against Smith and the state AGs.
In addition to eliminating slots for state officials, the DeVos Department had cut down the number of consumer and student advocates as compared with previous panels, so that, in Smith’s words, the panel was “incredibly imbalanced” against consumer protection. The slot representing veterans, normally given to a strong advocate for student protections, such as representatives from the groups Student Veterans of America and Veterans Education Success, was given to Daniel Elkins of the Enlisted Association of the National Guard of the United States, which receives financial support from about a dozen for-profit colleges, including American Intercontinental University, Ashford University, and the University of Phoenix — all the subject of law enforcement investigations by state and/or federal law enforcement agencies. Elkins, whom I have known for years, tells me he voted in favor or neutral whenever the panel was polled regarding adding an AG representative. (We can’t always see the thumbs from the audience.) But he didn’t speak up in favor of the AG nomination, and after an initial panel vote rejecting it, he argued that Smith should drop her insistence and move on.
The Department of Education’s representative on the panel, Annmarie Weisman, dismissed the concern about fewer student and consumer representatives on the panel, insisting that colleges represent their students. Several college negotiators echoed Weisman, some with righteous indignation in their voices.
The eight negotiators representing colleges, and three representing accreditors, vehemently, and without substantive reasons, joined Weisman on Tuesday in opposing the presence of a single representative of state attorneys general on the panel.
Instead, the schools and accreditors started to coalesce around the idea of adding to the panel another applicant, David Tandberg, vice president of the State Higher Education Executive Officers Association (SHEEO), a group that represents the state oversight agencies. These agencies, which DeVos’s Department also had shut out of the meeting, vary in their determination to hold bad schools accountable: Some are strong, but others are downright cozy with the institutions they are supposed to oversee, and generally these agencies have been weaker than the AGs on enforcement.
Terry Hartle, the long-time lobbyist for the American Council on Education — the giant group that represents state, non-profit, and for-profit colleges in Washington — declared that there should be a state voice, but that he wasn’t sure that state AGs are that voice.
Other panelists selected by the DeVos Department started to scold consumer lawyer Smith for pushing back. And one panelist announced that it was unacceptable to include the AGs because his school and an AG office had been in litigation. But that approach would shut down the whole meeting, because there are numerous ongoing disputes between schools, accreditors, students, the Department, and others represented on the panel.
On Tuesday, the panel voted overwhelmingly against adding Madaio of the Maryland AG office. Smith, with the support of Madaio and Tandberg, then backed the idea of adding Tandberg as a negotiator, but adding an AG rep, Madaio or Fast, as Tandberg’s alternate.
Hartle leaned back in his chair and opposed that compromise, too, saying the AGs and SHEOO agencies have different interests, and thus one couldn’t be an alternate for the other. When that compromise proposal was put to a vote Tuesday, Hartle and three others, including Susan Hurst of Ouachita Baptist University and Laura King of accreditor Council on Education for Public Health, voted against.
To complicate matters, the Department has changed the rules from past proceedings, where alternates were permitted to participate in the discussions on a regular basis. The new Department approach was to bar alternates from speaking at all unless the primary negotiator was away from the meeting. So that proposal was then debated for much of Tuesday, and ultimately alternates were given a slightly larger role.
When the meeting returned to the topic of the AG and SHEEO applications on Wednesday, the single student representative on the panel, Joseph Verardo, strongly supported Smith’s position that the AGs be included. (At the end of Tuesday’s meeting, when the public was permitted to comment, representatives from the National Student Legal Defense Network and the Century Foundation, as well as this writer, spoke in favor of the AG proposal.)
But when the proposal to add Madaio and Fast as negotiator and alternate was put to a vote again, the panelists again voted overwhelmingly thumbs down. However, as to the proposal that Tandberg be seated with AG representative Fast as his alternate, most panelists in unison flashed a lukewarm, neutral thumbs-sideways, suggesting they had conferred with each other on a change of approach.
But a single thumb went down: the one belonging to Annmarie Weisman, the negotiator representing the Department of Education. Betsy DeVos’s Department, for the second time, had killed the idea of including a representative of the state AGs on this critical rulemaking panel. As an explanation for blocking the AGs, Weisman would only echo what Terry Hartle of ACE said the day before: that the AGs and SHEOO agencies have different roles.
With no options left, Smith and Verardo voted with the rest to add Tandberg, with no alternate (even though every other panelist has an alternate).
Subsequently, the panelists decided to give Carolyn Fast of the New York AG office a consolation prize: membership on a non-voting subcommittee that will advise the main panel. The DeVos Department somehow was willing to tolerate that, but only that.
DeVos’s Department has worked to eliminate many of the key mechanisms to protect students and taxpayers against predatory college abuses — dismantling the Department’s investigative unit, reversing an action to get tough on lax accreditors, and possibly dropping an effort to crack down on phony conversions of predatory for-profit schools to nonprofit operations.
Staffed by a group of top aides who previously worked for some of the worst predatory operators in the for-profit college industry, DeVos also has moved to dump the Obama-era gainful employment and borrower defense rules, which were aimed at holding schools accountable for leaving students with overwhelming debt and providing new protections for students and taxpayers.
The new round of rule-making seems to be aimed at eliminating — in the name of “innovation” — some of the remaining means of keeping federal student aid out of the hands of shady operators, especially those disruptive innovators operating not from strip malls but from Wall Street.
DeVos’s top higher ed aide, Acting Under Secretary of Education Diane Auer Jones, previously worked as senior vice president and chief external affairs officer at the giant for-profit college company Career Education Corp., which earlier this month agreed to a $493 million settlement of fraud charges pursued by the state attorneys general. Jones has presented herself to the media as the architect of the new proposed rules, and she appeared at the first session to make opening remarks, insisting “We are not coming to the table saying all regulation should go away,” and stayed around to watch the debate.
The new DeVos-Jones proposals span a ridiculously wide range of issues, but the overriding theme is clear: Just about anyone or anything that wants to call itself a school can run just about any kind of self-styled education program and get access to taxpayer-funded grants and loans with minimal oversight and accountability. The Department would have lower standards for accreditors, the outside non-profit groups that the Department uses as gatekeepers for access to federal dollars, and accreditors would have fewer oversight obligations with respect to schools. In addition, schools would be able to outsource their education programming to unaccredited, unmonitored outside contractors.
As judged by their DeVos Department-selected representatives at these negotiations, all kinds of colleges seem to like the idea of greater flexibility and fewer regulatory risks. But their enthusiasm is blinding them to risks that crooked operators would be able to inflict more harms on students. The result would likely be more scams, more ripoffs of taxpayer money, and more lives ruined for people seeking to build better futures through education.
UPDATE 01-17-19 11:00 am:
At the end of Wednesday’s session, advocates for students were given the opportunity to deliver public comments.
Rep. Mark Takano (D-CA), chairman of the House Committee on Veterans Affairs and one of the strongest advocates for protecting students, talked about how predatory schools target veterans. He told the negotiators that the DeVos Department’s “aggressive effort to weaken standards undermines the job of Congress to protect students.” He charged that the Department, acting “under the guise of innovation” was moving toward “a total abdication” of its responsibilities. Clare McCann and Amy Laitinen of New America, Antoinette Flores of the Center for American Progress, Christian Smith of Generation Progress, and Anna Laitin of Consumer Reports all pointed to weaknesses in the DeVos Department’s proposed rules, or the unfair process.
Lauren Augustine of Student Veterans of America read a comment from her colleague Will Hubbard, a Marine reservist currently deployed to Kabul, Afghanistan. Will, who served as a negotiator representing veterans in previous Department rule-makings, wrote, in part:
What is the Department of Education’s mission if not to serve students? In fact, the stated mission is “to promote student achievement and preparation for global competitiveness.” The mission is not to promote unfettered access, so that any and every predatory program has all of America’s students to feast on.
Student and consumer advocates will not be silenced. Manufactured consensus will not serve to prepare students for achievement. Negotiators here today will not be fooled into believing the process is fair, if we are given an imbalanced hand, with the cards stacked against us.
I have personally sat with students of collapsed colleges—Americans with lives and families left in shambles—and they always have the same question: “if they knew the school was bad, why did the government give me loans to go there?” Veterans who earned their GI Bill, now spent, with only a bad memory—a nightmare as it seems—to show for it. No matter how much we try to create informed consumers, predatory schools will always outspend on their marketing machines.
Following the public comments, Department negotiator Annmarie Weisman offering closing remarks. She choose to dismiss the detailed warnings of Rep. Takano, Staff Sergeant Hubbard, and others, describing the potential dangers for students and taxpayers of of the Department’s proposed regulations, as follows: “I’ve heard a lot of doom and gloom.” Weisman said she preferred optimism — optimism that the negotiators could come to agreement on new rules.
Note: This article has been updated to reflect the statement to me of negotiator Daniel Elkins that he voted in favor or neutral whenever the question of adding an AG representative was put to a vote. Elkins says he urged Robyn Smith to stop holding out for an AG representative and support the SHEEO representative in the interests of moving on.