Federal Update - February 12

February 12, 2025

GOVERNMENT RELATIONS HIGHLIGHTS

Breaking News Nicholas Kent Tapped for ED: Late last night, news reports revealed that Nicholas Kent is expected to be nominated to be Under Secretary at ED, pending Senate confirmation.

McMahon Hearing Tomorrow: The confirmation hearing for Education Secretary-designate McMahon is set for tomorrow morning.

Bare Minimum Rule Legislation: Representative Smucker has reintroduced his legislation to preserve the 150% Rule.

Possible EOs on ED: President Trump may take steps to shrink the US Department of Education (ED).

FVT/GE Lawsuit Paused: A federal court placed our case challenging FVT/GE on hold for 90 days. 

BDR on Hold Too: The US Supreme Court last week granted the Trump Administration’s request to pause its review of the BDR litigation.

Title IX Resurrection: ED issued a Dear Colleague letter announcing that it will enforce the 2020 regulations. 

DEEPER DIVE: How does Budget Reconciliation work, and what could the impact be on higher education?

BREAKING NEWS: NICHOLAS KENT TAPPED FOR UNDER SECRETARY AT ED

Late last night, news reports revealed that Nicholas Kent is expected to be nominated to be Under Secretary at ED, pending Senate confirmation. In this role, Kent will oversee ED's policies and programs related to postsecondary education, career and technical education, adult education, and federal student aid. He currently serves as the Deputy Secretary of Education for the Commonwealth of Virginia under Governor Glenn Youngkin. Prior to that, he served as Chief Policy Officer at CECU for over five years.

MCMAHON CONFIRMATION AND NEW ED APPOINTMENTS

What You Need to Know

The Senate HELP Committee will hold its confirmation hearing for Education Secretary-designate Linda McMahon on Thursday, February 13. This hearing could grow contentious in light of consistent reports that the White House is planning executive orders that could begin the process to shutter ED. As mentioned above, late last night, news reports revealed that Nicholas Kent is expected to be nominated to be Under Secretary at ED, pending Senate confirmation. In this role, Kent will oversee ED's policies and programs related to postsecondary education, career and technical education, adult education, and federal student aid.

Why This Is Important

Those same press reports also revealed that the White House plans to nominate Kimberly Richey to run ED’s Office of Civil Rights; Kevin O’Farrell to be the Assistant Secretary for Career, Technical, and Adult Education; and former House EdWorkforce staffer Mary Christina Riley to be Assistant Secretary for Legislation and Congressional Affairs. Last week, ED formally announced additional senior roles, including the appointment of James Bergeron as Deputy Under Secretary. Bergeron is a well-known expert in higher education policy. Most recently, he served as President of the National Council of Higher Education Resources, one of the student loan industry trade associations. Bergeron previously worked for the House EdWorkforce Committee in senior eduction policy roles for nearly eight years.

SMUCKER CLOCK HOUR LEGISLATION RETURNS

What You Need to Know

Representative Lloyd Smucker (R-PA) has reintroduced the “Clock Hour Program Student Protection Act,” which would preserve the bare minimum rule (i.e., the 150% Rule). The Biden Administration changed the regulations to be 100% maximum program length, but those efforts have been blocked in the courts.

Why This Is Important



The 150% Rule provides schools with flexibility to design their programs to satisfy inconsistent program length requirements among regulators, thereby reducing barriers to licensure encountered by graduates across states. This is but one of many regulatory issues on which the incoming team at ED will have to devise a path forward. Reversion to the old rule could occur via new regulations, court action, or legislation.

EXECUTIVE ORDERS ON ED EXPECTED

What You Need to Know

Over the past two weeks, the Trump Administration has taken a wide range of actions at ED, including placing some staff on paid administrative leave for taking agency-sponsored diversity training programs. Amidst these announcements and with government-wide staff reductions underway, reports have surfaced that the White House is considering one or more executive orders about ED. Though the plan could change, early word is that two executive orders have been planned: one that would wind down as many program at ED as possible, and another that would call on Congress to eliminate ED and move the remaining programs to other agencies.

Why This Is Important

Eliminating ED will most likely require legislation, and it does not appear that there currently are sufficient votes in Congress to accomplish the President’s goal. In the meantime, however, the Administration may have some success in shutting down programs that are currently operating but do not have a formal authorization. For example, Congress occasionally creates a new program using the appropriations process without formally codifying it into an authorizing statute, like the Higher Education Act (HEA). All institutions should continue submitting any required documentation to ED, and we should expect that agency staff may struggle to process responses or approvals given the ongoing uncertainty swirling around ED.

AACS AGREES TO PAUSE FVT/GE LAWSUIT

What You Need to Know

On February 10, a district court in Texas granted a 90-day stay in our case challenging the Financial Value Transparency and Gainful Employment (“FVT/GE”) regulations. The motion, filed at the request of ED and with our consent, provides the Trump Administration with time “to become familiar with and evaluate their position regarding the issues in this case.” Acting Under Secretary Bergeron provided a declaration in which he noted that ED will not issue GE metrics until Fall 2025. Bergeron also stated that ED would not publish any GE metrics or take any action against schools on GE matters while the stay is in place. Finally, he advised the court that, although ED previously extended the reporting deadline to February 18, ED is considering further extensions to July 2025 or later.

Why This Is Important

We remain hopeful that the Trump Administration will make a favorable decision about how to proceed on FVT/GE. For now, this stay merely delays the litigation, and the February 18 debt reporting deadline remains in effect. As always, we will keep you informed on the latest developments in our litigation as well as changes to institutional reporting requirements.

SCOTUS REVIEW OF BDR CASE ON HOLD

What You Need to Know

Last week, the US Supreme Court granted the Trump Administration’s request to pause its review of the Borrower Defense to Repayment (“BDR”) litigation. This was the case brought against ED by the Career Colleges & Schools of Texas. The Supreme Court had previously agreed to hear an appeal of the case, with briefing originally scheduled to be completed in April 2025. On January 24, the Administration asked the Supreme Court to put its review of the appeal on pause in order “to allow for the Department to reassess the basis for and soundness of the borrower-defense regulations.”

Why This Is Important

The Biden Administration’s BDR regulations were previously stayed by an appeals court with a nationwide injunction. This stay remains in effect pending further action by the Supreme Court or ED. The Trump Administration could abandon the federal government’s defense of the current BDR regulations. However the Administration chooses to proceed, it is widely expected that this iteration of the rule will eventually be eliminated.

OLD TITLE IX RULES RESURRECTED

What You Need to Know

ED’s Office for Civil Rights issued a Dear Colleague letter on February 4, 2025, announcing that it will abandon the Biden Administration’s 2024 Title IX regulations. ED will instead enforce the 2020 Title IX regulations promulgated during the first Trump Administration. The Biden Administration rules were vacated nationwide by a court decision in early January and were never put into effect.

Why This Is Important

Schools should ensure that their Title IX policies comply with all of the requirements in the 2020 regulations. This includes the separation of investigative and adjudicative duties and the appropriate training of all participants in the Title IX review process.

DEEPER DIVE: BUDGET RECONCILIATION

What You Need to Know

"Budget reconciliation" is the term on the tips of everyone’s tongues on Capitol Hill at the moment. Reconciliation is a complex and arcane legislative process that allows Congress to circumvent the filibuster and pass budget-related legislation with a simple majority in the Senate. Budget reconciliation is often used by both parties to pass major, partisan legislation. For example, Democrats used reconciliation to pass the Affordable Care Act, and Republicans used reconciliation to pass the 2017 Trump tax cuts. Many of those tax cuts will be expiring soon, and it is a top priority of the White House and its allies in Congress to renew and expand their signature legislative achievement from the President’s first term. This week, the House and Senate began the process of teeing up a budget resolution, though the GOP leaders in each chamber have been at odds on exactly how big to go in reconciliation.

Why This Is Important

When Democrats used reconciliation to finish their work on the Affordable Care Act in 2010, they also eliminated the FFEL program in favor of the Direct Loan program. Stated differently, Democrats used budgetary savings from student loans to pay for Obamacare. Congress may once again look to education programs to pay for other programs. Last year’s College Cost Reduction Act (CCRA) was a bill championed by former EdWorkforce Chair Virginia Foxx (R-NC) and was the Republicans’ most recent attempt at HEA reauthorization. Portions of the CCRA could be included in reconciliation this year to help pay for renewed Trump tax cuts. Whether education provisions are included, let alone whether Republicans can come together and pass wide-ranging legislation with a tiny majority in the House, currently remains to be seen. But we will stay on top of it for you.