Biden’s Regulatory Agenda on Education


What would a Biden presidency mean for education policy? The answer depends on the balance of power in Congress, and, if Democrats take the Senate, whether they eliminate the filibuster. That’s because the bulk of Joe Biden’s official education plans will take congressional action to implement—especially his calls to significantly boost spending on early childhood education, Title I of the Elementary and Secondary Education Act, the first two years of college, and more.

Still, if the last 12 years have taught us anything, it’s that a president wields significant power through executive orders and regulatory action that do not require congressional consent. Executive authority and regulatory strategies are critical policy tools these days. Whether you view this as appropriate or executive overreach may depend on your party affiliation and who is in office.

So, what can we expect a President Biden to do with pen and his phone, as President Obama put it? Overall, expect quick action to establish the administration’s brand on social justice issues, colored by the Covid-19 experience and the 2020 summer of unrest. In particular, here is a list of actions we will likely see in the early on. The list is divided into actions formally mentioned as campaign promises and others noted more informally during the campaign:

Regulatory items in Biden’s official campaign promises

  • Forgiving student loans.The president doesn’t need congressional approval to adjust student loan payments, as Trump’s executive order suspending federal student loan payments demonstrates. President Biden is now campaigning on the authority, stating that he will eliminate student debt for individuals who meet eligibility criteria, such as qualifying low-income earners who attended public universities or teachers who serve in high-need schools. That relief would likely happen quickly and, if the politics play out, couple with congressional action on a Covid relief fund.
  • Protecting student borrowers from fraud. The Borrower Defense rule of the Higher Education Act is one of many long-winding regulatory sagas that would start yet another chapter under a Biden administration. The Act allows borrowers of federal student aid to assert as a defense to repayment “any act or omission of the school attended by the student that would give rise to a cause of action against the school under applicable State law.” The Obama administration was eager to provide relief to students who were on the wrong side of institutional fraud or misconduct by institutions benefitting from federal student aid. The Trump administration took a different view on the matter and issued new rules that make it harder for borrowers to have their student debt forgiven. Meanwhile, Secretary DeVos has been in and out of courts, accused in lawsuits of failing to carry out the law and of improperly revising the new rules. The Education Department says it acted properly. There is enough legal paperwork here to keep attorneys working long after a new Biden administration reverts to the Obama-era rules and begins to process overdue debt relief claims with some urgency.
  • Deferred action for childhood arrivals. It’s been turbulent times for undocumented immigrants brought to the United States as children. The Supreme Court prevented the Trump administration from entirely ending the Obama-era program that shielded these people from deportation. The Trump administration did tighten many aspects of the program, such as eligibility and renewal. Ultimately Congress has to sort this out, but look for a Biden administration to step-in early with more predictable and durable protections for eligible young immigrants and an invitation to Congress to return to work on the Development, Relief, and Education for Alien Minors (DREAM) Act, which has been working its way through Congress since 2001.
  • Applying anti-gender discrimination rules to gay and transgender youth. Title IX of the Education Amendments of 1972 asserts that “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” The Obama administration clarified that discrimination could be based on a student’s gender identity, which may be different than the sex designation on the individual’s birth certificate. The Trump administration rescinded that interpretation. A Biden administration would likely restore the Obama-era Title IX guidelines, especially given the recent Supreme Court decision applying protections to gay and transgender employees. This may be one of the first actions taken upon taking office.
  • Desegregation. The Biden platform states that he “will reinstate Department of Education guidance that supported schools in legally pursuing desegregation strategies and recognized institutions of higher education’s interests in creating diverse student bodies.” This is likely going to be cross-cutting guidance that clarifies how school officials can use and coordinate federal education funding to support desegregation strategies as a component of school improvement as well as community economic development. Such guidance would also set the stage for Congress to advance the Strength in Diversity Act of 2019 (HR 2639), which encourages cross agency coordination in the development and implementation of school diversity initiatives.

Other commitments Joe Biden made on the campaign trail

In addition to explicit commitments, Vice-President Biden has touched on a range of issues during the campaign that will likely see regulatory or executive action in the first 100 days.

  • Handling allegations of sexual harassment in schools and colleges. Through guidance and dear colleague letters, the Obama administration sought to place more responsibilities on school administrators to address and adjudicate claims of sexual harassment. Critics said this did not provide enough protections for the accused. The Trump administration changed course, engaging in full rulemaking, revising key terms, responsibilities, and the burdens upon the parties during a hearing possess. Today, the burden of proof falls more heavily upon the complainant. A new Biden administration would likely revert to the Obama-era policy, though it will take time to undo Trump’s regulations.
  • Addressing disparities in school discipline.Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color, or national origin. This includes policies and practices that intentionally discriminate against minority students. The Obama Administration applied a “disparate impact” approach to school discipline, putting out guidance indicating that disparities in suspension and expulsion rates could be seen as evidence of discrimination. The Trump administration then repealed the guidance. A Biden administration would likely reinstate it, and that’s likely to happen almost immediately.
  • Reconsidering assessments and accountability. On the campaign trail, Vice President Biden expressed his concern about assessments and stated that he would scale back the role that standardized tests play in our schools. Yet, the candidate hasn’t committed to waiving summative assessments or undermining the state plans for accountability as required by The Every Student Succeeds Act. The likely outcome is a mix of waivers and guidance. The waiver may allow states to adjust the use of assessment results for the purposes of school accountability with guidance about ways to strike the “right balance” of tests required by the state and used by districts. This approach builds on current state work to redesign summative assessments, as encouraged by both the Trump administration’s request for innovation (without a waiver) and the Obama “Testing Action Plan” of 2016.
  • Supporting students’ mental health. The Biden campaign would like to “double the number of psychologists, counselors, nurses, social workers, and other health professionals in our schools.” An expedient way to achieve this is to piggyback on the fast-growing school-based telehealth field, which accelerated in 2020 due to the COVID-19 pandemic. The Trump administration issued guidance earlier this year clarifying how Medicare can be used for telehealth. A Biden administration may extend the flexibility to school-based services. For example, the new administration could issue guidance clarifying the authority of a state to link the eligibility of school-based telehealth for reimbursements to services identified in a student’s individualized education plan. This kind of agency guidance would accelerate trends already underway for school-based health services.
  • Charter schools. Vice President Biden states that he does not support the use of federal funding for “for-profit” charter schools and the Biden-Sanders Unity Task Force proposes to “ban for–profit private charter businesses from receiving federal funding.” A Biden presidency will likely be pressured by union advocates to limit the eligibility of future Charter Schools Program grantees only to not-for-profit entities that do not contract with for-profit management organizations. The administration could also require that grantees receive the blessing of the local school district that would otherwise serve the current or potential students of the school. As with the scrutiny of “for profit” in other education sectors, however, the details matter, and political gestures will likely find compromise with the concerns of charter school advocates seeking to find the best education options for poor and minority students.
  • Scrutinizing the role of for-profit in higher education. A Biden administration will certainly refocus the Department of Education’s scrutiny on for-profit colleges and the role that for-profit companies play in the delivery of academic programming for institutions of higher education. This is likely to happen in at least two ways. First, Senator Elizabeth Warren and like-minded Democrats, are keen on broadening the prohibition in the Higher Education Act against paying commissions for recruiting and enrolling new students. That would constrict how for-profit organizations can work with schools.  Second, the long and tortured interpretation of “gainful employment” as it applies to career education programs under the Higher Education Act may start up again. The Trump administration rescinded the prior regulations, so those who lost their long-fought work on this matter may want to take another revised run at it.

So there it is, the not-so-short list of what President Biden may do with “his phone and his pen” if his team takes office in 2021. A Biden Department of Education would be busy. Intended and unintended consequences will soon follow.

David A. DeSchryver is senior vice president and co-director of research at Whiteboard Advisors, a Washington. D.C.-based social impact agency focused on the intersection of education and economic mobility.

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