June 17, 2020 CARES Act Update

On June 17, 2020, the Department published its Interim Final Rule (IFR) regarding Eligibility of Students at Institutions of Higher Education for Funds Under the CARES Act here. The IFR constitutes the Department’s binding final rule regarding student eligibility for HEERF assistance, and carries the force of law, except as enjoined with respect to the following entities:

• IHES in the State of Washington: The U.S. District Court for the Eastern District of Washington has enjoined the Department from restricting which students will receive HEERF emergency financial aid grants to only those students who are eligible for federal financial aid under Title IV. However, that court has affirmed that the restrictions of 8 U.S.C. § 1611 still apply to emergency financial aid grants to students made by any IHE in the State of Washington.Washington v. DeVos, No. 2:20-cv-00182-TOR, ECF No. 31, 63.

• California Community Colleges : The U.S. District Court for the Northern District of California has preliminarily enjoined the Department from enforcing any eligibility requirement for students to receive HEERF emergency financial aid grant, including Title IV’s eligibility criteria and applicable restrictions under 8 U.S.C. § 1611(a) “with respect to any community college in California.” Oakley v. DeVos, No. 4:20-cv-03215-YGR, ECF No. 44.

The Department will update this information as appropriate based on future developments.

May 21, 2020 CARES Act: Higher Education Emergency Relief Fund Updated Statement

The Department has stated on its guidance portal that “guidance documents lack the force and effect of law.” See U.S. Department of Education’s Guidance Homepage,  https://www2.ed.gov/policy/gen/guid/types-of-guidance-documents.html (“Guidance documents represent the ED’s current thinking on a topic. They do not create or confer any rights for or on any person and do not impose any requirements beyond those required under applicable law and regulations. Guidance documents lack the force and effect of law.”); compare, e.g., OPE Guidance Documents, https://www2.ed.gov/about/offices/list/ope/guidance.html (“Guidance documents lack the force and effect of law.”). On February 26, 2020, the Department published a Federal Register notice stating this principle along with an announcement of the existence and location of its guidance portal. Notice of Guidance Portal, 85 Fed. Reg. 11056, https://www.federalregister.gov/d/2020-03811. The statement applies to all of the Department’s guidance except as authorized by law or as incorporated into a contract.

This includes, for example, the statements in response to question 5 of the Higher Education Emergency Relief Fund Institutional Frequently Asked Question document located here and question 9 of the HEERF Student FAQ document located here explaining that only students who are or could be eligible to participate in programs under Section 484 in Title IV of the Higher Education Act of 1965, as amended, may receive emergency financial aid grants. HEERF Institutional FAQs at 2, HEERF Student FAQs at 4. The Department will not initiate any enforcement action based solely on these statements because they lack the force and effect of law. In contrast, the underlying statutory terms in the CARES Act are legally binding, as are any other applicable statutory terms, such as the restriction in 8 U.S.C. § 1611 on eligibility for Federal public benefits including such grants.

In addition, the Department reiterates its guidance that emergency financial aid grants under Section 18004(c) of the CARES Act may only be given to those who are or could be eligible to participate in programs under Section 484 in Title IV of the Higher Education Act of 1965, as amended (HEA), but emphasizes that that guidance is specific to the distribution of emergency financial aid grants and does not apply to the use of HEERF institutional allocations to cover any costs associated with significant changes to the delivery of instruction due to the coronavirus. The Department continues to consider the issue of eligibility for HEERF emergency financial aid grants under the CARES Act and intends to take further action shortly.

September 8, 2020 – CARES Act Update for Institutions in Massachusetts

IHEs in the State of Massachusetts: The U.S. District Court for the District of Massachusetts has preliminarily enjoined the Department from enforcing the IFR as to any institution of higher education in the Commonwealth of Massachusetts and as to any student attending a school that is located within the Commonwealth of Massachusetts. Massachusetts v. DeVos, No. 1:20-cv-11600-LTS, ECF No. 3.

Cares Act HEERF Home