For decades the U.S. Department of Education has been required by law to conduct extensive negotiated rulemaking meetings whenever it wants to issue regulations.  The ritual of stakeholders, policy nerds, and lawyers packed into a room debating the minutiae of regulatory language and data is, in some sense, an affirming exercise in open, participatory democracy, even though the administration in office ultimately has the power to throw out any regulatory language agreed to by the panelists and substitute its own final version of the rules.

But it’s really weird this year for these generally earnest meetings – the latest of which began Monday in the fluorescent auditorium at the Department of Education headquarters in DC – to be happening under the auspices of a proto-authoritarian Trump regime that cynically and blatantly violates the law and abuses law enforcement powers across the board.  Like having a tenants association meeting in an apartment complex that’s engulfed in flames.

The education department itself has been heavily depleted by the Trump administration’s firings, many of them likely illegal, which have cut the 4000-member staff almost in half, as Secretary Linda McMahon has pledged to shut down the agency completely.

Republicans’ new embrace of accountability

It’s also pretty weird how the dynamics of higher education regulation have changed this year. Congressional Republicans suddenly got interested in holding colleges and universities accountable for leaving students with bad outcomes. In the One Big Beautiful Bill it enacted over the summer, Congress included a provision called Do No Harm, which will take federal student loan eligibility away from college programs whose graduates consistently earn less than high school grads.

Do No Harm, signed into law on July 4 by President Trump, is a close cousin of the gainful employment rule, an Obama/Biden construct that the for-profit college industry endlessly hated, Republicans in Congress endlessly attacked, and Trump education secretary Betsy DeVos completely cancelled, before Biden’s team revived it.

For 15 years since the modern iteration of the taxpayer-funded for-profit college industry was exposed as rife with waste, fraud, and abuse, some of us have tried to tell congressional Republicans that they should be on our side: That federal dollars should not be sent to schools without performance standards to ensure we get what we pay for, that federal programs should not make the intended recipients worse off than when they started.

When I tried to make these points in 2019 testimony before the House oversight committee, I saw some Republicans members nodding in agreement, but the Bat Signal must have gone up, and within minutes Rep. Virginia Foxx (R-NC), who has long been in the pocket of the for-profit college industry, showed up, took a seat on the dais, even though she was not a member of the committee, and started weighing in. 

Foxx, who was previously chair of the House committee overseeing education, has long been one of the top recipients of for-profit college industry campaign dollars and has repeatedly defended the industry, which has endlessly argued that any accountability standard, like gainful employment, might be OK but only if applied to all programs at all schools. The industry pressed those arguments knowing full well that the legal authority for the gainful employment rule was a statute that covered only for-profit college programs, plus shorter-term certificate programs at non-profit and state schools.  They also probably believed it was highly unlikely that Congress would ever extend gainful employment-type provisions to degree programs at traditional colleges, because those schools’ own powerful lobby would block that.

But the for-profit college lobbyists turned out to be wrong, and this year’s Republican spending bill did impose this accountability requirement, and this week’s negotiated rulemaking session aims to flesh out this new legislation.

If you assume this new law won’t have much impact, consider how the Do No Harm rule seemed to really upset Diane Auer Jones, a former top executive of one of the worst predatory college companies who ran higher ed policy under Betsy DeVos in the first Trump term. In a recent interview, Jones said she is “adamantly opposed” to the accountability rule, which she called “ridiculous” and “based on inaccurate data and a false premise.” Echoing past industry objections to the gainful employment rule, Jones said it was wrong for the law to suggest “that if you go to college, you are now obligated to earn more money.” Instead, she said, higher education should be “based on choice.” 

The idea that people might go to college just to learn, without any expectation of earning more money, does remain valid, if perhaps quaint at this point. It was never a good argument – coming from the likes of Steve Gunderson, the former head of CECU, the for-profit college lobbying group – against the gainful employment rule, which covered only explicitly career-focused and for-profit programs, which have tended to attract people who really need more income, and soon. Jones’ argument might have more relevance with respect to Do No Harm, which covers liberal arts Sarah Lawrence College alongside the for-profit UEI College. But research indicates that Jones doesn’t need to worry too much about Sarah Lawrence losing access to student loans — we can expect that, for the most part, it will be for-profit programs that flunk Do No Harm.

What’s at stake at this meeting

Still, the for-profit college industry did manage to get something else in the Beautiful bill that provides a potential new way for unscrupulous operators to fleece students and taxpayers for years to come – what the bill calls “Workforce Pell,” meaning federal higher education Pell grants will go for the first time to job training programs that last just a few months. Federal aid to attend these kinds of programs is potentially a great idea, for both individual students and the U.S. economy. But it also opens the door to new deceptive and fraudulent sales pitches for expensive, low-quality programs. The industry blocked efforts by Democrats to exclude for-profit programs from Workforce Pell eligibility. 

Workforce Pell is the subject of this week’s rulemaking session, and the Department is racing through topics to force a conclusion on that issue by Friday.

An additional topic crammed into just a few weeks of rulemaking is what will be done with the latest version of the gainful employment rule, issued under the Biden administration. That rule includes some critical protections for students beyond those in the Beautiful bill. Some in the for-profit sector have argued that the enactment of the Beautiful bill demands that the gainful rule be rescinded. But Senator Bill Cassidy (LA), the Republican chair of the Senate committee overseeing education, has indicated that the two measures can exist side-by-side.

So there is much at stake in this rulemaking, and some signs are actually encouraging. Trump’s Under Secretary of Education Nicholas Kent said in opening remarks that he wanted to “create an accountability framework that endures” and leaves students “better off.” And the comments on the specific regulatory issues by the Department negotiator on the panel, Dave Musser, seem, so far, not too bad. 

A tilted panel

But in another sense, there are trouble signs. In particular, the Trump administration, as in the past, has heavily stacked the negotiator deck in favor of for-profit college interests. 

In contrast to practice over many years, the Department is refusing to allow members of the public to make comments during the course of the negotiated rulemaking meetings, and Monday the Department reaffirmed that refusal in the face of a request by Tamar Hoffman, the negotiator representing legal services organizations, who noted that there were members of the public in the room who wanted to speak. They included at least three student loan borrowers who were also military veterans. 

Musser, the Department negotiator, also cast the single vote on the panel opposing Hoffman’s request to add what has been a staple of rulemakings in past years: a negotiator chair to represent the civil rights community. Chavis Jones, the experienced counsel at the Lawyers Committee for Civil Rights Under Law, was standing by, hoping to join the deliberations. Musser said no. (Musser worked for 20 months, at the start of his career, at Career Education Corp., now called Perdoceo, one of the worst predatory college companies, before working at Northwestern University and then, since 2010, the Department.)

As to the negotiators that the Trump education department did select for the panel, they tilt heavily in favor of the for-profit higher education industry and its enablers. 

Aaron Lacey, chosen by the Department to represent “Private Nonprofit Institutions of Higher Education Including Institutions Eligible to Receive Federal Assistance Under Title III and Title V of the HEA, Tribal Colleges and Universities, and Historically Black Colleges and Universities,” is a partner at the law firm Thompson Coburn and a genuine expert on a wide range of education policy issues. 

Although Lacey is charged with representing non-profit schools, he has been closely tied to the for-profit college industry. 

Lacey joined Thompson Coburn in 2014 from Vatterott Educational Centers, Inc., where he had served for four years as Senior Vice President of Regulatory Affairs & Strategic Development. The company’s Vatterott College had a history of poor student outcomes and deceptive practices that extended through and past Lacey’s tenure there. 

Of the 800 career and for-profit college programs that flunked the first test of the Obama Administration’s version of gainful employment rule — which measured whether graduates earn enough to pay down their student loans — 40 were at Vatterott schools. Vatterott shut down in 2018 after its accreditor, ACCSC, withdrew approval, concluding that the school was failing on graduation rates and job placement.

Lacey’s firm, Thompson Coburn, represented the collapsed, disgraced ITT Tech for-profit college chain and lobbied for giant for-profit Adtalem; each company has faced multiple federal and state law enforcement investigations. 

Numerous observers at this week’s meeting agreed with me that Lacey has pressed for extra school flexibility to enroll and retain students and obtain federal aid for Workforce Pell programs, seeming to seek changes that would be most advantageous to for-profit schools. 

Lacey’s backup negotiator representing non-profit schools is Joanna Roush of Liberty University, a non-profit school that has long engaged in for-profit-style aggressive recruiting of students.

Lacey has been joined in his support for changes that could help for-profits by, not surprisingly, Jeff Arthur, the primary negotiator representing for-profit colleges. Arthur is vice president of regulatory affairs and chief information officer at ECPI University; he’s been at the company since 1993.

In 2015, the Virginia Department of Veterans Services withdrew its approval for a campus of ECPI’s Medical Careers Institute, to receive GI Bill education funding, because it found the school had engaged in a series of deceptive practices. 

That was a while ago, but ECPI has for longer been closely tied to CECU, the for-profit college trade association that has aggressively opposed accountability measures for decades. CECU stopped sharing publicly the list of its school members in 2021 – perhaps because of too many public discussions of egregiously bad predatory behavior by its members – and as recently as last week CECU declined to provide me with its member list. But the last published list, from 2021, shows ECPI campuses as key CECU members. 

To represent at the rulemaking students who are veterans or military service members, the Trump department chose Matthew Feehan of the Veterans Education Project, a group that opposed bipartisan legislation, strongly supported by many veterans groups, to close the 90-10 loophole, a troubling gap in the law that gave predatory for-profit schools extra incentives to target veterans and military service members. Veterans Education Project has declined to say whether it gets financial support from the for-profit college industry, and CECU declined to say whether it gives Veterans Education Project money. 

To represent employers, the Department picked, as an alternate negotiator, attorney Dennis Cariello of the law firm Hogan Marren Babbo & Rose. Cariello has served for at least one previous rulemaking, during Trump I, as a negotiator representing for-profit colleges. He once served as an expert witness for awful, predatory, now-shuttered-for-fraud Globe University, and he represented higher ed expert Mark Schneider in an industry lawsuit to defeat the Obama Administration’s version of the gainful employment rule. One of the clients at Cariello’s former law firm DLA Piper during his tenure there was Corinthian Colleges, the now-shuttered fraud that was receiving as much as $1.4 billion a year in taxpayer money.

And to represent accrediting agencies, the Department selected Michale McComis, head of the Accrediting Commission of Career Schools and Colleges (ACCSC), the largest accreditor of – wanna guess? – for-profit schools, and an agency that has repeatedly acted too slowly, if at all, to address deceptive and abusive practices by the schools it is supposed to monitor.

To represent “Taxpayers and the Public Interest,” the Department chose Preston Cooper of the conservative American Enterprise Institute. Cooper has in the past made arguments against the gainful employment rule that echoed for-profit college talking points. But more recently Cooper has seemed more supportive of accountability. 

A Trump rollercoaster ride

This Trump II education department is on a rollercoaster ride when it comes to college accountability issues. The administration accepted the Do No Harm legislation, and has offered a few other promising steps in favor of school disclosures to the public. (Even the Trump administration’s recent letter threatening colleges with loss of funding unless they move in a MAGA direction included a demand that colleges do more to make degrees pay off financially.)

At the same time, the Trump team’s cuts to personnel have gutted the divisions that focus on investigations, oversight, and enforcement. The Department also has taken steps to undermine the independence of NACIQI, the panel of outside experts charged with advising the Department on recognition of accrediting agencies.

Even worse, the Department cancelled a fine against Grand Canyon University that was the result of a careful investigation during Biden’s term showing that Grand Canyon systematically deceived students regarding the cost of their educations. A Department spokesperson falsely claimed that the Biden team persecuted Grand Canyon because it styles itself as a Christian school –  ignoring that many of the students who were tricked were themselves Christians, while the for-profit recipient of Grand Canyon’s revenues is a Wall Street-traded corporation, not an actual Christian.

There’s a genuine possibility, if the Trump education department does not cave to the worst positions of the for-profit education industry, that the new rulemaking will result in fair regulations that could in theory help protect students and taxpayers. The toughest tests will be whether there are sufficient guardrails to ensure quality and integrity in Workforce Pell programs, and whether critical aspects of the gainful employment rule survive. But even if the rulemaking produces strong regulations, the Department, or whatever remains of the Department, will have to re-start its commitment to oversight and enforcement, or else the new rules will mean nothing.