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Room for Disagreement on TPS
With the help of my therapist / bartender, I shall learn to move on
Phil Hill
May 02, 2023
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As a follow up to yesterday’s premium post on the third-party servicer (TPS) panel transcript from ASU+GSV, I wanted to highlight and address two growing sources of disagreement among those who have been publicly critical of the Department of Education’s (ED’s) TPS guidance. More specifically, at the conference it became apparent that there are two areas where there are significant arguments against some of the positions I have taken:
Whether or not it is significant that ED did not rescind the Dear Colleague Letter (DCL) and instead issued guidance through a blog post: and
Whether 2U’s lawsuit against ED was a good idea and likely to improve the future changes of the DCL.
tl;dr - I think the choice of blog post by ED is significant and that the 2U lawsuit was a good idea, but others do not.
I am planning a public post tomorrow on the court case that will touch on these subjects but wanted to share additional thoughts in this space ahead of time.
Significance of Blogulation
My argument is that there is significance that the ED chose to notify the community of changes and delays in the TPS DCL through a blog post and not through rescinding or modifying the actual DCL.
On one hand, all the changes mentioned in the blog post are improvements over the submitted DCL 23-03. On the other hand, this post clearly shows that ED plans to thread the needle and keep as many of the TPS expansions in place that they can get away with. ED is committed to the chosen approach, despite the overwhelming feedback through public comments.
The official DCL has not yet been updated. I will say that if ED thinks a blog post clarification of regulatory guidance is sufficient, rather than rescinding or updating the DCL itself, then we will have another mistake to contend with. I hope I am wrong, but it looks like ED is just winging it with process, trying to buy time until they can revise the DCL but keep as much as possible. This introduction of blog posts into the mix is ridiculous. Institutions and vendors need clarity, not additional contradictory informal statements. Hopefully the actual revision process will go through negotiated rulemaking.
The counterargument I have heard from multiple people at ASU+GSV - often directly or indirectly from lawyers - is that guidance is not legally binding, and therefore it does not matter that the chosen medium was a blog. Mike Goldstein described this view during the panel: