Speculation over future of higher education under Trump runs wild

Betsty DeVos with Donald Trump and Mike Pence
Betsty DeVos with Donald Trump and Mike Pence | a katz/shutterstock.com
With the announcement that Betsy DeVos will be the new secretary of education, those analyzing the future of higher education are speculating what changes might emerge with the Trump presidency.

In a briefing published by Law360, a group from Thompson Coburn, which has a dedicated team that represents higher education institutions and related companies, laid out their thoughts on the future.

Five attorneys authored “Make College Great Again: Higher Education in the Trump Era,” outlining what they expect to happen, even while acknowledging the president-elect said little on policy through the election.

Trump did say federal student loan repayment plans should be more generous, and borrowers should be able to refinance student debt, the authors, Kelly Simon, Kimberly Bousquet, Robert Wallace, Christopher Murray and Aaron Lacey, wrote. Further, he said endowments should be used to help make college more affordable.

The authors noted that, with such a blank slate, Trump’s “most profound impact” will be his pick for secretary of education.

DeVos’ experience and advocacy in her home state of Michigan and beyond has centered on K-12. She is an extremely strong advocate for charter and other types of non-public schools.

This could give the GOP in Congress, particularly those with strong views, power to steer education policy.

“Republicans in Congress have been outspoken in their concerns about regulatory over-reach at the Department of Education during the Obama years,” the Thompson Coburn attorneys said. “Eliminating or modifying those Obama-era priorities will likely be at the top of their priority list.”

Republicans could start the regulatory rollback as early as the lame duck session. At the top of the list are two of the Obama administration's signature education regulations: gainful employment and borrower defense to repayment rules.

These primarily targeted for-profit colleges, many of which the administration argued were delivering sub-standard education to students, leaving them with huge debt and little prospect of getting a job in their field.
Stock prices of the publicly traded, for-profit colleges soared with the news of Trump's election, the authors noted.

Additionally, they speculated that the White House-led multi-agency task force that has been coordinating efforts against for-profit schools will likely cease its work after Trump's inauguration.
Gainful employment creates minimum debt-to-income ratios that institutions must meet or else lose access to federal aid. Republicans tried to have the rule scrapped a number of times, but they were blocked by Democrats.

Borrower defense to repayment has only just been introduced. Under the rule, students can apply to have their loans discharged if they can prove misdeeds by their institution. This applies to all colleges.

When under discussion, concern was raised around the overly broad definition of “misrepresentation.”

Attorney Roel Campos, of New York-based Hughes, Hubbard and Reed -- who advises and defends corporate management teams and board, and is a former commissioner with the Securities and Exchange Commission -- fears former students from law school or small liberal arts colleges will take advantage of the expanded definition of misrepresentation.

The new rules effectively eliminate the need to prove intent to deceive students by the college, Campos told Higher Education Tribune.

"It is easy to foresee a situation in which enterprising aggressive plaintiffs and class action lawyers will see an opportunity to assemble a group of law school or small liberal arts college graduates who have found it hard to find a well-paying job,” Campos said.

The GOP could insert a policy rider into a final appropriations bill to defund or delay the rule, according to Thompson Coburn.

Alternatively, both houses of Congress could pass a joint resolution of disapproval of the rule under the seldom-used Congressional Review Act, which President-elect Trump could sign once in office.

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Thompson Coburn LLP

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