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Immigration activists rally at the Republican National Convention in 2016.

As U.S. Education Secretary Betsy DeVos has taken heat for ruling that undocumented college students brought to the country as children aren’t eligible for emergency student grants in the CARES Act, she has insisted she had no choice.

Congress, DeVos has said repeatedly, made it clear in the March stimulus package that only those students eligible for federal student aid could get the grants. The grants are intended to help pay for housing, food and other necessities after campuses closed during the pandemic.

And DACA students, so called because they were given the right to live and work in the U.S. under the Obama administration’s Deferred Action for Childhood Arrivals program, cannot get student aid.

“That’s kind of the distinction that Congress was explicit about,” DeVos said on Greta Van Susteren's online show, Full Court Press. “Congress had the opportunity to write the law a different way, and they chose not to. And I’m here to follow the law.”

However, Democrats in Congress vehemently deny that anything in the CARES Act excludes DACA students from being able to get any of the $6.2 billion in emergency grants available to other college students.

Indeed, on Friday, the leading Democrats on key House and Senate education committees wrote DeVos calling on her to reverse the decision. “When we drafted emergency legislation in response to the COVID-19 pandemic, Congress did not place limitations on which students could or should get emergency aid -- we simply directed the Secretary and institutions to make funds available to students,” wrote Senator Patty Murray, the ranking Democrat on the Senate committee, and Representative Rosa DeLauro, chairwoman of the House’s education appropriations committee.

“The extreme eligibility restrictions, which were added by the Department without any directive from Congress and without any statutory basis, represent an unconscionable response to the virus that does not discriminate against which students are impacted by it,” they wrote.

So who’s right?

Asked last week to explain why DeVos believes the CARES Act excludes undocumented students, a spokeswoman pointed at two sections of the stimulus law. One, Section 18004(a)(1), instructs the department to divvy up three-fourths of $12 billion in the bill for higher education institutions based on their number of low-income Pell Grant students. The other, Section 18004(b), tells the department to distribute the stimulus aid to colleges and students in the same way it now distributes student aid.

In the department's thinking, Congress, by making those references to financial aid, like Pell Grants, was telling DeVos it only wanted those who qualify for those regular aid programs to get the emergency grants. And that wouldn't include DACA students.

But Democrats argue the CARES Act never explicitly says that.

“That’s an easy one to debunk,” said one Democratic Senate aide, who would only speak on the condition of anonymity.

The first section the Education Department cited “is just the formula that the bill uses to see how much each institution gets. It has nothing to do with how the funding is used,” the aide said. It wasn’t meant to mean that DACA or other students should not get help, according to the aide.

And even though three-fourths of the money is based on Pell Grant enrollment, the other fourth of the stimulus formula is based on non-Pell enrollment, the aide said. “So there is clearly no intent to exclude those who don’t receive Pell Grants,” the aide argued.

Indeed, the description of the emergency grants in the CARES Act doesn’t specify who is eligible to get them. It says only that the institutions have to use no less than half of their stimulus funds on "emergency financial aid grants to students for expenses related to the disruption of campus operations due to coronavirus (including eligible expense under a student’s cost of attendance, such as food, housing, course materials, technology, health care, and child care)."

Several critics of DeVos’s decision also dispute the assertion that Congress required the department to exclude DACA students, and the department's interpretation of Congress's intent was meant to exclude the undocumented students without openly saying so. But in doing so, DeVos also excluded other students who do not qualify for student aid for reasons like having bad grades or having defaulted on student loans.

“Bottom line, I think the department is basically gaslighting everyone into thinking they read something in the law to support this decision,” said Clare McCann, New America’s deputy director for federal policy. “In reality they created student eligibility restrictions as a way to ensure undocumented and international students wouldn't be getting the money.”

Terry Hartle, the American Council on Education’s senior vice president for government and public affairs, said, "The Education Department faces the unenviable task of having to implement a massive piece of legislation in short order." But requiring students be eligible for student aid to receive the grants causes an array of other problems, besides whether DACA students qualify, said Hartle, who also believes the law didn't force the Education Department to link the two. Of particular concern, he said, is that 7.5 million students have not filled out financial aid forms. And requiring them to prove they're eligible for the other student aid programs could mean many will not get the grants quickly, or at all.

Murray and DeLauro also raised the concern in their letter to DeVos. "It is unreasonable to ask current students who are working to finish their terms to fill out a detailed form to receive emergency financial aid … The Department’s unjustified decision to restrict emergency financial aid grants to Title IV eligible students will deny support to a vast number of working families."

But What Did Congress Intend?

However, it’s also unclear whether Congress explicitly meant to let DACA students get the emergency grants. Democratic and Republican aides in emails last week disagreed.

Republican aides said DACA students are ineligible for emergency grants. But they stopped short of saying the CARES Act explicitly prohibited it, as DeVos says. They did not return emails or declined comment when asked if they agreed with DeVos’s interpretation that only those eligible for financial aid can receive the emergency grants.

Rather, one aide gave a different explanation. Undocumented people in the DACA program already cannot get student aid. Because the CARES Act did not spell out that DACA recipients are eligible, it meant they aren’t.

“The CARES Act did not change current law on the matter,” the aide said.

“DACA recipients are not eligible for federal funds under the Higher Education Act,” said another Republican aide on the Senate education committee. Speaking for Senator Lamar Alexander, the Republican chairman of the committee, the aide said, “The senator believes Washington needs to fix our broken immigration system. But until then, it is likely that federal funds will continue to be restricted. It’s Congress’s fault for not fixing our immigration system, and the senator thinks that should be high on the priority list when the current COVID-19 crisis is over.”

But while Republicans believe the CARES Act’s vagueness means DACA students are ineligible, Democrats believe it means the opposite. They argue that nothing in the CARES Act says the grants have anything to do with student aid. So it doesn’t matter if DACA students cannot get aid.

Democrats could have made it clear DACA students were eligible. Democratic Senate aides wouldn’t say why they didn’t insist the law be clearer.

A Democratic aide on the Senate education committee only pointed to a prior statement by Murray, the committee’s ranking Democrat. “Secretary DeVos pushing DACA recipients, undocumented and other vulnerable students out of needed relief from the CARES Act is cruel. This virus doesn’t discriminate when it comes to who is impacted, and our response absolutely shouldn’t, either. And to be clear, the secretary has no basis for issuing this unauthorized guidance -- I will absolutely push this administration to do what is right and reflect the intent of Congress.”

Sanaa Abrar, advocacy director for United We Dream, which advocates for people in the DACA, program, said it wasn’t necessary to make the law clearer. "The bill, as it was written, would have provided aid to all students, regardless of immigration status. Betsy DeVos and the Department of Education made a wholly unnecessary and callous decision unilaterally. She is the sole reason undocumented students are left out of this much needed aid," Abrar said in a statement.

To David Bergeron, senior fellow for postsecondary education at the progressive Center for American Progress, what members of Congress intended for DACA students probably depended on what side of the aisle they are on. And both assumed different things in leaving vague which students would get emergency help.

“Yes, D’s could have written the language to be more clear about inclusion. Yes, R’s could have written the language to be more clear to exclude them,” Bergeron said. “My guess is both R's and D's assumed the outcome they wanted.”

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