Washington Watch: More confusion on CARES Act grants

The Education Department (ED) again has added and altered the information it has provided to higher edcuation institutions about implementing CARES Act student emergency grants. 

The May 21 communication came as a shock and has created more uncertainty about how colleges should disburse funds, especially since the new statement notes that the department “continues to consider the issue of eligibility for HEERF (Higher Education Emergency Relief Fund) emergency financial aid grants under the CARES Act and intends to take further action shortly,” signaling that the odyssey of ED’s administration of the emergency grants will continue.

Guidance is really just guidance

The substance of ED’s updated statement is not new, and merely reaffirms basic federal government administrative procedure. Specifically, it states that “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.” 

In this instance, however, context is everything, because in the new communication ED has specifically addressed this principle to its previous guidance that CARES Act emergency financial aid grants may only be given to students who are eligible for financial aid under Sec. 484 of the Higher Education Act.

The new statement says that ED “will not initiate any enforcement action based solely” on its statements in prior FAQs that CARES Act student grants may only go to Title IV eligible students. However, the statement then goes on to “reiterate its guidance” that only students who qualify for federal student aid may receive grants — seemingly at odds with the immediately preceding statements.

Furthermore, in stating that statutory terms in CARES and other laws are legally binding, ED specifically cites 18 USC 1611, which bars international and undocumented students from receiving federal public benefits “including [CARES Act] grants.”   

ED’s action has been interpreted by some as its response to lawsuits as well as political pressure arguing that ED’s guidance on student eligibility was more limiting than that specified in CARES. The latest statement could be a way of sidestepping responsibility, at least in a legal setting.

Options for colleges

Many member colleges of the American Association of Community Colleges (AACC) have already distributed CARES Act emergency student grants or have developed plans to do so. Institutions may want to move ahead in providing funds to students impacted by COVID-19, but since they have one year from the date of their formal certification with ED to spend the funds, they may consider waiting for the next iteration of ED’s guidance, whatever its legal status. They also now have strong justification to interpret the CARES Act law as they perceive it, irrespective of the guidance previously provided.

Please contact AACC’s government relations office if you have any questions or comments about your college’s plans in this area, as it enhances the association’s ability to advocate on your behalf. AACC continues to work to persuade Congress to provide greater funding for colleges to respond to the ongoing pandemic. Part of that effort is to ensure that institutions have maximum flexibility to use any funds provided by Congress.

About the Author

David Baime
David Baime is senior vice president for government relations at the American Association of Community Colleges.