In an announcement posted Tuesday morning to the Federal Register, Secretary of Education Betsy DeVos said she planned to publish a rule "on or about today," which would restrict undocumented students from accessing $6 billion in federal coronavirus relief funds.
That rule would give previous "guidance" the force of law, walking back DeVos' previous walk back of the restrictions.
However, the Education Department walked back that decision hours later, sowing more uncertainty among school administrators about how to distribute billions of dollars in aid.
The Education Department first announced the restrictions in April, preventing schools from giving emergency funds to hundreds of thousands of undocumented students known as "Dreamers" — students granted special protected status under the Deferred Action for Childhood Arrivals (DACA) policy.
That guidance also knocked out other students who might be ineligible for other common reasons, such as poor grades.
The National Education Association said the move exhibited an "astounding" level of "cruelty," and Democrats and higher education officials have argued that it goes against the intent of the CARES Act, which does not explicitly limit what students can receive aid.
Most schools obliged, believing they had little choice, but two state college systems — California and Washington — sued the department.
However as hearings began in federal court in late May, the department quietly added a statement to its website: "The department has stated on its guidance portal that 'guidance documents lack the force and effect of law.'"
No one seemed to fully understand what that update meant, and schools and higher education experts could not tell whether the rule applied to the department's earlier guidance about DACA.
"I don't know what to make of it. It's another bit of confusion that's been injected into the CARES Act funding," Terry Hartle, vice president for American Council on Education government and public affairs, told Inside Higher Ed.
Put simply, DeVos was saying that schools should not give money to undocumented students, but if they do, the government cannot stop them.
Unless, of course, the department in the future changes its "guidance" to an "interim final rule," which carries the force of law. Such rules typically take effect immediately, even though they must go through a notice and comment period which could run several months.
That is what DeVos said she would do Tuesday morning — until she did not do it.
It is notable that the change would have come on the same day as a virtual hearing in San Francisco court, where a federal judge was considering California's motion to block DeVos' original guidance — the one restricting Dreamers from accessing funds.
But Politico Pro reported that just ahead of that hearing, the Trump administration told the judge in a court filing that the department would not, in fact, publish the new rule that day because the language had not been finalized.
"The department does intend to publish an IFR on this subject but does not expect it to be ready for publication before June 15, 2020, at the earliest," the government attorneys wrote.
Another federal judge will hear the Washington state case on Thursday.
The upshot to the saga, however, is that any update might be meaningless: It is still unclear how many schools have already distributed their money to students, in which case they cannot wind back the clock in order to reallocate funds to Dreamers in need.
DeVos, however, is currently attempting to turn another controversial policy into law, forcing public schools to share emergency funds with private schools. Unlike with the subtle DACA guidance, DeVos openly admits that this move is purely ideological.
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