California judge says ex-Education Secretary Betsy DeVos must testify in student loan suit

Washington — A federal judge in California ruled Wednesday that former Education Secretary Betsy DeVos must comply with a subpoena for testimony in a class-action lawsuit brought by former students of now-defunct for-profit colleges seeking to have their federal student loan debt forgiven.

U.S. District Judge William Alsup of the Northern District of California denied DeVos' request to block a subpoena for her deposition issued in a suit concerning the lawfulness of the Education Department's 18-month pause in issuing decisions on "student-loan borrower-defense applications," which allow borrowers to seek forgiveness of their student debt if their schools misled them or engaged in other unlawful misconduct.

Scores of borrowers asked the department to relieve them of their debt after Corinthian Colleges, a for-profit institution, collapsed and were awaiting decisions from the Department of Education on their requests.

"Even assuming Secretary DeVos retains some measure of executive prerogative, she must answer an appropriately issued subpoena," Alsup wrote in his order. "Judicial process runs even to unwilling executives."

Citing the Supreme Court's 1974 decision ordering President Richard Nixon to comply with a subpoena for White House tapes during the Watergate investigation and President Bill Clinton's testimony while president in the suit brought by Paula Jones about his conduct as governor of Arkansas, Alsup said that if the "judicial process rules to presidents, it runs to cabinet secretaries — especially former ones."

"Extraordinary circumstances warrant the deposition of Secretary DeVos for three hours, excluding breaks," he wrote.

Alsup froze enforcement of his order for 14 days and scheduled a status conference for June 3.

The suit dates back to 2018, when the Department of Education stopped issuing decisions on applications for debt relief for 18 months, while a backlog of requests grew. The department then denied the vast majority of claims and issued little explanation as to why each borrower was rejected.

A class of 160,000 borrowers sued in June 2019 to force the secretary to restart the process of deciding their applications, and in November of that year, DeVos said her delay was because of staffing shortages and competing priorities. 

DeVos argued that issuing final decisions on the claims is "time-consuming and complex," but Alsup said she was issuing "alarming-curt denial notices," which contrasted with the basis for the delay in processing borrowers' requests. 

Four depositions have been taken over the past several months, and Education Department officials who have testified "have disclaimed authority" for the decision to halt adjudicating applications from borrowers and "have instead pointed to the secretary," Alsup wrote. 

"Beyond illuminating her involvement, these material gaps at the highest rungs of the Department's decisionmaking record reveal the necessity of Secretary DeVos's testimony for an independent reason," he said. "We lack an official and contemporaneous justification for the eighteen-month delay because this suit concerns agency inaction, and not the usual agency action."

The Biden administration is backing DeVos in the suit.