Warren standoff could delay Department of Education actions

Senator Elizabeth Warren, a Democrat from Massachusetts, is continuing to hold up a vote on the confirmation of a key higher education official at the Department of Education, as Congress’s August recess approaches and big decisions for the department are on the horizon.

In April, James Kvaal testified at his noncontroversial confirmation hearing to be the under secretary of education at the department, and he was reported out favorably by the Senate Health, Education, Labor and Pensions Committee a few days later. But the full Senate still has yet to vote on his nomination.

A person familiar with the situation said Warren is waiting for further clarity from the department about how the student loan program will continue to be administered. She has raised concerns about the department’s oversight of for-profit colleges and how it plans to assist student borrowers in the COVID-19 economic recovery. She has also questioned management of the Public Service Loan Forgiveness program — in which only 2 percent of applicants have been approved — and the role that loan servicers play in the student loan system. It’s unclear whether Kvaal holds positions on student loan administration that Warren opposes.

Warren, along with dozens of other congressional Democrats, has continued to call for President Biden to cancel $50,000 in federal student loan debt via executive action. Most recently, she led a letter to Biden urging the administration to extend the student loan repayment pause enacted last March by the CARES Act and set to expire Oct. 1.

It’s actually fairly common for senators to hold up nominations, said Terry Hartle, senior vice president for government relations and public affairs at the American Council on Education.

“All senators have the authority to hold up nominees,” Hartle said. “It’s unusual for it to come from a senator in the president’s own party, but it does happen.”

Five other Education Department officials are at various stages of the Senate’s confirmation process, and it’s unclear if Warren will also hold up their votes by the full Senate. Inside Higher Ed reached out to Warren’s office for comment and did not receive a response.

Questions are arising about how much power Warren is wielding in the Biden administration, including at the Education Department. Toby Merrill, appointed by Biden to serve as deputy general counsel at the department earlier this month, co-wrote a memo to Warren in January 2020, providing the legal justification for student loan debt cancellation without congressional action. Warren has also been a longtime supporter of Richard Cordray, who is now the chief operating officer at the Office of Federal Student Aid.

“Mr. Biden has questioned whether he has the authority to [cancel debt], but now Ms. Merrill will have a new perch to persuade him,” wrote the editorial board of The Wall Street Journal. “Ms. Warren backed Mr. Cordray a decade ago to be the Consumer Financial Protection Bureau’s first director. Now he’s getting another chance to target student loan servicers and debt collectors.”

The lack of confirmations delays the administration’s regulatory agenda. Major decisions usually aren’t made until the presidentially nominated, Senate-confirmed individuals are in their positions, said Hartle. In addition to deciding whether to extend the loan repayment pause, the department is also pursuing negotiated rule making on a range of student aid-related topics and will have to transition close to 10 million student borrowers to new loan servicers after FedLoan Servicing and Granite State Management & Resources announced they will not be extending their servicing contracts when they expire at the end of the year.

“James is as qualified a nominee as you will ever see for the under secretary at the Department of Education,” Hartle said. “He enjoys widespread support, and it really harms the department, students and institutions if we can’t get that position filled in a timely fashion.”

If Warren continues to block Kvaal’s nomination through the end of the month, the department will be without an under secretary until at least September, which is when Congress returns from its yearly August recess.