On June 17, 2020, the U.S. Department of Education published an interim final rule that excludes some of our nation’s most vulnerable college students from access to the emergency financial aid grants provided by Congress in the CARES Act. In the following letter, submitted in response to the department’s request for comment, Century Foundation senior policy associate Peter Granville details the numerous faults in the department’s justification and describes how the rule subverts the values of equity and efficiency that are central to this $6.3 billion program.

Dear Secretary DeVos:

I am submitting this comment in response to the Department of Education’s interim final rule on student eligibility for emergency financial aid grants under the CARES Act’s Higher Education Emergency Relief Fund (HEERF), as published in the Federal Register on June 17 (docket number ED–2020–OPE–0078).

By limiting access to this critical financial aid exclusively to students who are eligible to participate in Title IV programs—an entirely separate and distinct form of financial aid—the department has grossly misinterpreted the language of the CARES Act. Furthermore, this decision is consequential for hundreds of thousands of students, many of whom are among the nation’s most vulnerable, yet the department’s justification does not hold up to scrutiny.

The secretary should rescind the interim final rule (IFR) without delay, so that higher education institutions can allocate funding to their students with the greatest needs without regard for the irrelevant factors that the department has injected into the process.

The Rule’s Harm

At a time of immense disruption to American higher education, the HEERF emergency grants have provided a lifeline to our nation’s college students: for many, even a few hundred dollars to purchase a laptop or help pay rent can make the difference between completing coursework or not.1 By excluding students who are ineligible to participate in Title IV, the department denied assistance to many of the students who have the greatest financial need and are among the least likely to find help elsewhere.

Eligibility to participate in Title IV depends on a number of criteria, most easily certified through completion of the Free Application for Federal Student Aid (FAFSA). However, millions of students enroll without having completed the FAFSA, an estimated 29.7 percent of undergraduate students in 2015–16.2 The FAFSA is a notoriously complex form, and research indicates that insufficient information about the form is a factor in nearly one-quarter of FAFSA non-completion.3 The IFR allows for a FAFSA non-completer to self-certify that they meet the eligibility criteria to participate in Title IV, but to do so, that student must (1) understand the numerous criteria as listed in Section 484 of the Higher Education Act, and (2) attest under penalty of perjury that they meet these requirements. Students who lack guidance may have particular difficulties overcoming these procedural hurdles.

Further, a significant share of students harmed by the interim final rule are the nation’s undocumented immigrant students, who are estimated to comprise about 2 percent of all college students in the United States.4 The education of undocumented immigrants is of vital interest to our economy: as one indicator, in 2017 the federal government received $4 billion in tax revenue from DACA recipients alone, greater than the annual general fund revenues of eleven U.S. states that fiscal year.5

It was the case long before the department’s rule that financial assistance to pay for college had become systematically inaccessible to undocumented students.

While data on the finances of undocumented students is limited, demographic studies show that undocumented immigrants’ poverty rate is roughly double the national rate.8

As I will explain, Congress opted not to exclude undocumented students from this program, thus offering financial support to a large group of students who seldom receive it. This was the right decision to ensure that the fewest number of students would have to leave their education due to financial hardship, a vested interest for our nation’s economic future. The department’s rule, by contrast, intervenes unnecessarily and cruelly reinforces one of the most significant disparities in access to financial support in American higher education today.

The Department’s Rationale

The department’s justification for the rule relies on two major claims that do not withstand scrutiny.

Federal Public Benefits

The department claims that, because 8 U.S.C. 1611(a) prohibits the federal government from distributing federal public benefits to “non-qualified aliens,” and that the HEERF emergency grants fall under this category of federal public benefits, undocumented students may not legally receive these grants.

As the U.S. District Court for the Northern District of California rightly determined last month,9 8 U.S.C. 1611 features a number of exemptions, many of which are related to federal grants provided to communities amidst public health and emergencies. The court found that the HEERF grants’ similar function—delivering aid to college communities during the COVID-19 pandemic—justifies considering the grants exempt.

Further, the court ruled that it would defy common sense for certain students to be counted in the calculation of institutions’ allocations under the HEERF and yet denied access to the emergency aid share of those allocations. As the Center for American Progress has written, undocumented students’ share of enrollment equates to an estimated $132.5 million in HEERF funding.10 This sum would increase when adding in other categories of students who are excluded by the IFR.

Title IV Eligibility

Building on the premise that undocumented students must be ineligible for the aid—which, as we have seen, is false—the department then makes further dubious claims to justify the IFR. The department first asserts that the term “student” as used in Section 18004(c) cannot be interpreted to mean any enrolled student, given the exclusion of undocumented students, and that certain phrases in Section 18004 point to a link to Title IV. The department then concludes the language of the CARES Act necessitates excluding all students who are ineligible to participate in Title IV.

First, the department references the fact that the phrase “emergency financial aid grants to students” is used both in reference to the Federal Supplemental Educational Opportunity Grant, a Title IV program, and the HEERF emergency aid. However, they neglect to consider that even if their reading of the flexibility granted to FSEOG recipients to utilize existing dollars to provide emergency grants excludes undocumented students (which Congress did not explicitly state), case law says that this general rule of statutory construction11 does not apply when two related statutes, or parts of the same statute, play different roles in a common goal.12 Clearly, Congress did not intend for these programs to play the same role: the FSEOG program is a narrower program, and Congress granted flexibility on that program, while Congress created a new, expansive, $6.3 billion program to respond to a pandemic.

The department also claims that, because Section 18004(c) uses the phrase “cost of attendance,” and that Section 18004(a) twice uses the phrase “cost of attendance (as defined under section 472 of [Title IV of] the Higher Education Act),” the CARES Act implies “that the Department and institutions adhere to the requirements under title IV.” However, the phrase “cost of attendance” is commonly used outside of the context of Title IV aid, and the term is used when calculating other forms of financial aid such as state or institutional aid;13 the phrase is even used by programs designed strictly for students who are ineligible for Title IV aid, such as California’s student loan program for certain undocumented residents.14 Contrary to the department’s claim, the phrase is used in Section 18004(c) merely to describe some of the expenses that are eligible to be covered by HEERF emergency aid, not to identify what types of students are eligible to receive those grants.

Because the CARES Act delivers HEERF allocations to institutions through the funding mechanisms that send Title IV dollars to institutions, the department claims that Title IV eligibility must apply to HEERF aid. This attempts to make a long logical leap and falls short, ignoring the far simpler explanation that the CARES Act authors knew the Title IV funding system provides the quickest way to deliver the aid most expediently to the nation’s postsecondary institutions. There are other examples in the CARES Act of money belonging to one program being delivered through the funding mechanism of another program. For example, Sec. 2102(f) uses state unemployment insurance systems to deliver Pandemic Unemployment Assistance, a distinct benefit with a different set of eligibility rules. It is not true, then, that the usual programmatic requirements of a program whose funding mechanism is utilized by a separate CARES Act program necessarily apply to that CARES Act program.

Lastly, a reading of the CARES Act as a whole indicates that Congress was willing to explicitly circumscribe which groups of individuals are eligible and which are ineligible for its new financial assistance programs. The authors of the CARES Act frequently included explicit eligibility criteria for these programs, such as the following:

  • Sec. 2102(a)(3)(B) specifically excludes two categories of workers from Pandemic Unemployment Assistance.
  • Sec. 2107(a)(2) establishes eligibility criteria for the 13 additional weeks of Unemployment Insurance.
  • Sec. 2201(a) specifically excludes nonresident aliens from Recovery Rebates, i.e. stimulus checks.

The authors of the CARES Act included no such criteria for the HEERF grants.

The Urgency of Rescinding the Rule

Beyond the language of the CARES Act alone, the Congressional Record suggests that the elected lawmakers who passed the bill intended for HEERF emergency aid to be available to all students whose education was disrupted by COVID-19. On March 27, Education and Labor Committee Chairman Bobby Scott stated, “The CARES Act now has more than $30 billion in relief for students, educators, schools, and institutions of higher learning. For institutions of higher learning, it will provide financial relief to colleges and universities and also support grants to displaced students.” This statement, and all others in the Congressional Record that reference the HEERF emergency aid,15 did not qualify who would receive this assistance.

The secretary was right to say in her April 9 letter to college and university presidents that it is important to “get support to those most in need as quickly as possible.” In that letter, she was also right to note that the CARES Act gives institutions “significant discretion” to award these funds. However, the interim final rule that the department has since adopted subverts these values of equity, efficiency, and institutional flexibility through a severe misinterpretation of Section 18004 of the CARES Act.

Institutions should have the flexibility to deliver any remaining HEERF emergency aid funds to students who have been excluded by the department’s rule. With confirmed COVID-19 cases at record highs and the fall semester mere weeks away, the same disruptions that necessitated the emergency funds in the spring will be present again soon. Emergencies of health, housing, hunger, technology access, and more are already occurring for many students, and many more are imminent. The department should rescind this rule immediately to allow institutions to restore equity and efficiency to this critical program.


Peter Granville
Senior Policy Associate
The Century Foundation


  1. Peter Granville, “How Colleges Can Advance Equity with CARES Act Emergency Student Aid,” Washington, DC: The Century Foundation, May 4, 2020, https://tcf.org/content/report/how-colleges-can-advance-equity-with-cares-act-emergency-student-aid/.
  2. Author’s analysis of National Postsecondary Student Aid Survey data.
  3. Scott Jaschik, “Why Students Don’t Fill Out the FAFSA,” Inside Higher Ed, January 14, 2019, https://www.insidehighered.com/admissions/article/2019/01/14/new-research-shows-why-students-dont-fill-out-fafsa.
  4. Miriam Feldblum, Steven Hubbard, Andrew Lim, Christian Penichet-Paul, and Hanna Siegel, “Undocumented Students in Higher Education: How Many Students are in U.S. Colleges and Universities, and Who Are They?”, New American Economy & Presidents’ Alliance on Higher Education and Immigration, April 2020, https://www.presidentsimmigrationalliance.org/wp-content/uploads/2020/04/2020-04-16-NAE-PA-Report-Undocumented-Students-in-Higher-Education.pdf.
  5. See Table 3 in The Fiscal Survey of States: Fall 2018, Washington, DC: The National Association of State Budget Officers, Fall 2018, https://higherlogicdownload.s3.amazonaws.com/NASBO/9d2d2db1-c943-4f1b-b750-0fca152d64c2/UploadedImages/Fiscal%20Survey/NASBO_Fall_2018_Fiscal_Survey_of_States_S.pdf.
  6. Only nine states allow undocumented students to receive state financial aid: California, Minnesota, New Mexico, New York, New Jersey, Texas, Washington, Oregon, and Colorado.
    “10th State Offers ‘Dreamers’ College Financial Aid,” Voice of America News, February 14, 2019, https://www.voanews.com/student-union/10th-state-offers-dreamers-college-financial-aid.
    “Undocumented Student Tuition: Overview,” Washington, DC: National Conference of State Legislatures, September 19, 2019, https://www.ncsl.org/research/education/undocumented-student-tuition-overview.aspx.
  7. “Basic Facts About In-State Tuition for Undocumented Immigrant Students,” Los Angeles, CA: National Immigration Law Center, updated April 11, 2020, https://www.nilc.org/issues/education/basic-facts-instate/.
  8. In an analysis of Census Bureau data from 2012 to 2016, the Migration Policy Institute estimates that the rate of poverty among unauthorized immigrants in the U.S. is 28 percent, and the Census Bureau’s estimates of the annual national poverty rate range from about 13 percent to 15 percent over that same period.
    “Profile of the Unauthorized Population: United States,” Washington, DC: Migration Policy Institute, n.d., accessed July 15, 2020, https://www.migrationpolicy.org/data/unauthorized-immigrant-population/state/US.
    “Historical Poverty Tables: People and Families – 1959 to 2018,” Suitland, MD: United States Census Bureau, n.d., accessed July 15, 2020, https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-people.html.
  9. Eloy Ortiz Oakley, et al., vs. Betsy DeVos, et al., Case #20-cv-03215-YGR, United States District Court of the Northern District of California, filed June 17, 2020.
  10. Viviann Anguiano, “Undocumented Students Generated Up to $132 Million in Relief to Colleges—But They Won’t Receive a Dime From the Stimulus,” Washington, DC: The Center for American Progress, May 5, 2020, https://www.americanprogress.org/issues/education-postsecondary/news/2020/05/05/484505/undocumented-students-generated-132-million-relief-colleges-wont-receive-dime-stimulus/.
  11. The department cites Powerex Corp. v. Reliant Energy Services, Inc., 551 U.S. 224, 232 (2007), specifically the sentence, “identical words and phrases within the same statute should normally be given the same meaning.”
  12. Erlenbaugh v. United States, 409 U.S. 239 (1972).
  13. For example, in Illinois the Higher Education Student Assistance Act (110 ILCS 947) uses the phrase “cost of attendance” to establish a number of state financial aid programs, and it does not define this term in the context of Title IV of the Higher Education Act. A number of state financial aid programs in New York also use the phrase “cost of attendance” without a link to Title IV, such as by saying “Cost of attendance shall mean tuition, required fees, laboratory and other instruction related expenses, books, transportation, room and board” (EDN § 670-b). These states are only two examples and not an exhaustive list of states that use the phrase this way.
  14. California Education Code, Section 70032.
  15. My search of the Congressional Record from March 20 to March 27 yielded statements by the following list of lawmakers: Sen. Dick Durbin on March 20, Rep. Bobby Scott on March 27, Rep. Sheila Jackson Lee on March 27, Rep. Marcy Kaptur on March 27, Rep. Lauren Underwood on March 27, Rep. Mike Thompson on March 27, Rep. Diana DeGette on March 27, and Rep. Angie Craig on March 27.