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Judge Smacks Down DeVos For Illegal Conduct by Education Department


It’s been just over a month since we’ve really heard from Betsy DeVos. In mid-August, the DeVos Department of Education withdrew the 2016 Gainful Employment Rule, which prohibited diploma mills from swindling students out student loan money. But DeVos isn’t just interested in changing the rules to suit her big-money cronies – she also appears to have been ignoring existing rules since she took over the DOE.

The Borrower Defense Rule, also adopted in 2016 after the DeVry and and Corinthian debacles, allows students to seek loan forgiveness from the federal government when a school violated state law. Once a student raises such a defense against repayment, the DOE can seek reimbursement of the federal loan money directly from the offending school. In other words, this rule basically says, “as the federal government, we recognize that we really should be making sure that Fraudster U doesn’t get your federal loan money, and since we were apparently asleep at the wheel when you enrolled, we’ve got your back now.”

As you may have noticed, however, we’re in a new world since 2016 – one in which architects of the very schools targeted by these legal rules now run the DOE. They’ve decided that the Borrower Defense Rule should be delayed. And by “delayed,” we mean, “held off just long enough for Betsy and her people to nix the rules altogether and thereby eliminate those pesky protections for American students.”

Thankfully, there seems to be at least one person looking out for our students. Obama-appointee and United States District Judge Randolph D. Moss granted summary judgment against the DOE in a 57-page smackdown that declared DeVos to have acted unlawfully.

The underlying lawsuit is a consolidated action brought by two student plaintiffs — Meaghan Bauer and Stephano Del Rose, and a coalition of nineteen states and the District of Columbia against the DOE.   It alleges that the DOE’s decision to delay implementation of the Borrower Defense Rule was invalid for a number of reasons. The court agreed, basing its decision on well-settled principles of administrative law, saying that DeVos’ position “lack[s] any meaningful analysis,” and calling the DOE’s actions “procedurally invalid,” and “arbitrary and capricious.”

In granting the plaintiffs’ motion for summary judgment, Judge Moss delivered a big win to the plaintiffs in this case; what that win will mean is still yet to be seen, as the case is scheduled for hearing to address appropriate remedies to compensate plaintiffs for the DOE’s illegal delay.

Judge Moss’ ruling Wednesday is clearly a victory for those who value protection of our students and their money. That victory, though, promises to be short-lived, as DeVos continues to dismantle legal protections against waste, fraud, and abuse. Without the Borrower Defense Rule, the federal government is unconstrained to give free money to diploma mills on behalf of unsuspecting students and their families. Then, even when actionable fraud occurs, the offending predator keeps its money and the federal government gets paid back with interest.

[Images via Mark Wilson/Getty Images]

This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos