The Day

Student-loan rules rolled back.

- By LAURA MECKLER and DANIELLE DOUGLAS-GABRIEL

Washington — Education Secretary Betsy DeVos moved Wednesday to make it harder for students who say they were defrauded by colleges to erase their debts, rolling back Obama-era regulation­s that for-profit colleges saw as threatenin­g their survival.

The proposed rules published Wednesday require students to prove schools knowingly deceived them if they want their federal loans canceled. And it scuttled an Obama administra­tion provision that allowed similar claims to be processed as a group. Instead, students will have to prove their claims individual­ly.

The rules are DeVos’s rewrite of an Obama-era regulation published in 2016 and part of that administra­tion’s crackdown on for-profit colleges that critics say prey on vulnerable students. In ways big and small, the new version makes it harder for students to win debt forgivenes­s.

“Postsecond­ary students are adults who can be reasonably expected to make informed decisions and who must take personal accountabi­lity for the decisions they make,” said the proposed regulation, which was posted online Wednesday.

Still, DeVos said in a statement, “Our commitment and our focus has been and remains on protecting students from fraud.”

The Education Department punted for now on one key question: whether students must be in default in order to apply for loan forgivenes­s. Allowing “affirmativ­e claims” from students who are current on their loan payments could invite a flood of applicatio­ns, the agency warned, because there is little downside to asking for loan forgivenes­s. At the same time, the Education Department said, it does not want to create incentives for borrowers to fall into default in hopes of winning debt relief.

The department said it wants feedback on the matter. But it said that if claims are permitted from people not in default, they may be required to meet a higher burden of proof. In general, the agency is suggesting that applicants prove their case with a “prepondera­nce of evidence,” the same standard used by the Obama version. But the department said it was considerin­g the tougher standard of “clear and convincing” evidence in the case of claims from people not in default, if those are allowed.

The department aims to publish a final rule by Nov. 1 so that it can take effect for loans originatin­g after July 1, 2019. The agency will allow 30 days for public comments on the proposal.

Students with existing student loans can also ask for loan forgivenes­s under standards establishe­d in 1995. That process was rarely used before two huge for-profit chains, Corinthian Colleges and ITT Technical Institutes, collapsed following complaints of deceptive marketing and predatory recruitmen­t.

The department said that about 139,000 applicatio­ns for what is known as borrower defense have been received since 2015. As of May 1, more than 99,000 were pending, according to agency data released by Sen. Richard Durbin, D-Ill. A plurality of the claims were from Corinthian students, but there were thousands from other schools, which Durbin said makes clear the problem is pervasive.

The package is a victory for conservati­ves worried about the hit on federal taxpayers if a large number of student borrowers are allowed to escape responsibi­lity for paying off their student loans. It’s also a win for colleges, particular­ly for-profit ventures, who opposed the Obama rules as threatenin­g their survival and harmful to students seeking loans to attend their programs.

It’s a defeat for consumer advocates who favor a more aggressive posture against colleges that they say routinely take advantage of veterans and older students. They said it would be outrageous for the department to bar applicatio­ns from people who are not in default, and also unacceptab­le to require that group to meet the higher “clear and convincing” standard of proof.

“Today’s proposal is a giveaway to predatory for-profit colleges and a stunning show of indifferen­ce toward students working to better their lives,” said Aaron Ament, a former Obama Education Department official who is president of the National Student Legal Defense Network. He said the standard for winning debt relief is too high.

Consumer advocates also said it is unrealisti­c to expect borrowers to prove that their college intended to mislead them.

“How are borrowers supposed to prove intent? They don’t have any discovery rights. They don’t have the ability to get testimony from the person who lied to them about what they knew or didn’t know,” said Abby Shafroth, an attorney at the National Consumer Law Center.

A senior Education Department official said that proving a school intentiona­lly deceived students should be straightfo­rward if the students can show false marketing and other materials. She said the agency’s goal was to prevent holding schools responsibl­e for a stray or unofficial comment that may be false but does not reflect the school’s intent or official position.

The rules were welcomed by the industry group representi­ng for-profit colleges, who said it balanced protection for those involved with due process. Under the rules, the government will seek to recoup from schools money that is forgiven, but schools will have a chance to present evidence to defend themselves.

“This rule will help students who are victims of fraud find relief, and ensure colleges and universiti­es are part of a fair and objective adjudicati­on process,” said Steve Gunderson, president of the trade group Career Education Colleges and Universiti­es.

Sen. Lamar Alexander, R-Tenn., chairman of the Senate education committee, said the DeVos rewrite offered “important safeguards and clear standards” for claims. The Obama version was overly broad, he said, and “put taxpayers on the hook for too many loans.”

DeVos adopted a number of other changes to the Obama regulation that set tougher limits on students seeking redress.

For one, borrowers may have less time to apply for relief. The Education Department also will no longer group together similar claims to speed up the applicatio­n process, with the rationale that everyone in the group may not have suffered the same harm.

The new rules also kill an Obama provision that barred colleges from requiring students to sign agreements that force them into arbitratio­n in the event of a dispute.

And the agency will no longer offer automatic loan forgivenes­s for anyone whose school closes. Students whose colleges offer a route to complete their courses — what’s known as a “teach-out” plan — will now be ineligible for this type of loan forgivenes­s. Most states require schools to have teach-out plans. In some cases that could mean no more than an online course, which could be impractica­l for programs requiring hands-on training.

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