In case you missed it, Betsy DeVos recently got a judicial smack down in the battle over student protections in loan repayment. I won’t rehash the merits of the competing student loan policies here. You can find that elsewhere. But it is worth emphasizing exactly why DeVos lost and its implications for other administrative actions. Those two things are extremely important in thinking about the future of the broader landscape of education policy.
The short story is that when an agency seeks to reverse or block an existing or pending regulation, it needs to either go through the normal process of passing new regulations (which takes a while) or, in the case of stopping pending regulations, offer a legitimate explanation. DeVos’s action on student loan regulations failed because the Department did not explain itself in any rational way. Rather, it seemed to use a lawsuit by a group of colleges as an excuse to simply do what it wanted to do–exercise raw power in favor of a particular policy agenda. That, the court demonstrated, you cannot do.
Second, the court offered an interesting analysis of how a 180 degree reversal of policy requires a little something extra. The court’s analysis was compelling. It is fine for an agency to enforce the law within the bounds of its discretion. But when it completely reverses a policy position, it begs the question of whether one of the two agency interpretation is simply wrong. The public deserves a reasoned explanation of why the prior one was wrong. Again, it is not enough to simply say: “I’m in power now.” This analysis, in particular, strikes me as being important to other policy fights to come, particularly since this Administration says it wants to entirely remake or end the federal role in education.
Okay, so enough on the commentary, what exactly did the court say? To appreciate the conversation, a little background is in order.