Education Department Maintains Busy Regulatory Agenda

Education Department Maintains Busy Regulatory Agenda

Despite the disruption caused by the coronavirus pandemic, the Department of Education continues to pursue a jam-packed regulatory agenda affecting higher education.

In its most recent action last week, the department issued final regulations that both facilitate faith-based institutions’ access to the Title IV programs and revise the TEACH Grant Program. The regulations, the second of three sets of rules that emerged from the department’s 2018-2019 negotiated rulemaking process, are scheduled to go into effect on July 1, 2021, although the department is allowing for early implementation.

Meanwhile, numerous regulations have recently gone into effect, while others await implementation or finalization or are still on the drawing board. A current regulatory snapshot is below.

Newly Effective Regulations

A trio of regulatory changes became effective on July 1, 2020.

• Final regulations governing federal recognition of accrediting agencies, state authorization, and other student assistance general provisions are now effective.
• Final regulations governing the forgiveness of federal student loans to defrauded borrowers, known as the Borrower Defenses to Repayment regulations, are now effective. Although Congress passed legislation to overturn the regulations, President Trump vetoed the bill. Congress failed to override the veto, and the regulations are now in effect.
• Obama-era regulations governing gainful employment were repealed effective July 1, 2020.

Final Regulations Not Yet Effective

Two sets of final regulations issued by the department have not yet taken effect.

• Final Title IX regulations governing campus sexual harassment and sexual assault are set to go into effect on August 14 2020. However, at least two lawsuits seeking an implementation delay have been filed.
• Final regulations that both facilitate faith-based institutions’ access to the Title IV programs and revise the TEACH Grant Program were released by the department on July 1, 2020. The regulations will become effective on July 1, 2021, although the department is allowing early implementation.

Proposed Regulations Not Yet Finalized

Two sets of proposed regulations published by the department have not yet been finalized.

• Proposed regulations that are designed to implement President Trump’s Executive Order addressing freedom of speech on college campuses, as well as to facilitate faith-based institutions’ eligibility to participate in various grant programs under the Higher Education Act, were published on January 17, 2020.
• Proposed rules that are intended to facilitate distance learning and educational innovation were published on April 2, 2020. Once finalized, the rules will take effect on July 1, 2021.

Proposed Regulations in Development

The department has also announced that it plans to issue proposed regulations in the following three areas.

• Foreign Gift Reporting: The department intends to issue proposed foreign gift reporting regulations regarding a requirement to produce true copies of gift and contract agreements under Section 117. This effort would supplement additional Section 117 foreign gift reporting requirements that the department has imposed. Under those requirements, institutions must report foreign gifts from the first part of 2020 via an online portal by July 31, 2020.
• Anti-Semitism: The department intends to issue proposed regulations to implement President Trump’s Executive Order on combating anti-Semitism.
• Student Privacy: The department intends to issue proposed regulations amending the Family Educational Rights and Privacy Act, the federal law that protects the privacy of students’ educational records.