Government Says Guidance on Emergency Aid was Preliminary

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By Mark Kantrowitz

May 27, 2020

In a court filing by the U.S. Department of Justice on May 25, 2020, the federal government asserts that the U.S. Department of Education’s guidance concerning eligibility for emergency financial aid grants to students was preliminary. The guidance prevented many students from receiving the emergency financial aid grants.

Back and Forth on the Guidance

Guidance published by the U.S. Department of Education on April 21, 2020 blocks international and undocumented students from receiving emergency financial aid grants to students. It also requires emergency financial aid grant recipients to have filed a FAFSA or have been eligible to file a FAFSA. Students who do not have at least a 2.0 GPA and many veterans and disabled students would not have been eligible for the emergency financial aid grants.

The California Community College System filed a lawsuit on May 11, 2020 against the U.S. Department of Education, seeking to block this guidance.

The U.S. Department of Education subsequently published new guidance on May 21, 2020, effectively reversing and limiting the earlier guidance.

U.S. Department of Justice Response to the Lawsuit

The U.S. Department of Justice’s response to the lawsuit argues that the lawsuit is not “ripe” for a judge to decide because the guidance issued by the U.S. Department of Education was “preliminary guidance” and “non-binding guidance that the Department has already committed to not enforce.” They say that this guidance represents “preliminary views” and does not represent “final, binding rules.”

The federal government’s response presents a bit of revisionist history because the original guidance published by the U.S. Department of Education does not describe itself as preliminary and non-binding, although the U.S. Department of Education has elsewhere described guidance in general as lacking the “force and effect of law.”

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The revised guidance newly asserts that the U.S. Department of Education “continues to consider the issue of eligibility for HEERF emergency financial aid grants under the CARES Act and intends to take further action shortly.” It seems likely that these changes in the guidance were made in response to the California Community Colleges lawsuit.

Nevertheless, the response asserts that the emergency financial aid grants to students are not available to international students and undocumented students because 8 USC 1611 “prohibits ineligible non-citizens from receiving any Federal public benefit, including appropriated funds.”

The response also states that the U.S. Department of Education “does not consider HEERF funds to constitute Federal financial aid under Title IV” but also reiterates the Department’s assertion that “emergency financial aid grants may be given only to students who are or could be eligible for Title IV aid” even as it confirms that colleges “may distribute funds to non-Title IV eligible individuals from their own HEERF Institutional Portions.”




Response Argues for Title IV Eligibility Restrictions

The substance of the response’s argument that the emergency financial aid grants to students are limited to students who are eligible for Title IV federal student aid is based on the use of the term “emergency financial aid grants to students” in two locations in the CARES Act.

The first use is in connection with the reallocation of Federal Supplemental Educational Opportunity Grants (FSEOG) as emergency financial aid grants to students. The second use is in connection with the Higher Education Emergency Relief Fund (HEERF).

The response argues that since the FSEOG emergency financial aid grants are implicitly limited to students who are eligible for Title IV federal student aid, the use of the same term, “emergency financial aid grants to students”, means that the HEERF emergency financial aid grants are also limited to Title IV-eligible students.

The response also makes reference to the language in the CARES Act that specifies that the emergency financial aid grants are “for expenses related to the disruption of campus operations due to coronavirus (including eligible expenses under a student’s cost of attendance, such as food, housing, course materials, technology, health care, and child care).”

In particular, the response argues that the use of the words “cost of attendance” and “eligible” limit eligibility to students who are eligible for Title IV student aid, even though the word “including” is not limiting in effect.

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