ABA objects to proposed changes in Public Service Loan Forgiveness program
The ABA opposes the Trump administration’s proposed changes to the Public Service Loan Forgiveness program, which the association says is “a vital tool for ensuring that the public receives critical public services.”
“Congress created the PSLF program to ensure the public receives critical public services and to encourage and support qualified professionals who provide those services,” ABA President Bill Bay wrote in a letter to U.S. Secretary of Education Linda McMahon on Thursday. “Potential rulemaking that would change the focus of the program from the services being performed and the people doing that work could chill the future viability of the program.”
It also could “create uncertainty for the communities and public servants currently benefiting from the program,” Bay added.
In April, the U.S. Department of Education announced its intent to change the definition of “qualified employer” under the Public Service Loan Forgiveness program, which offers loan forgiveness for those who make monthly loan payments for 10 years while working full time in public service. People employed by government agencies or nonprofit organizations, including the ABA, typically had been eligible for the program.
Related feature: These Public Service Loan Forgiveness applicants have seen their student debt erased.
The proposal followed an executive order signed by President Donald Trump in March that said employees of “activist organizations” that support activities with a “substantial illegal purpose” should no longer be eligible for the Public Service Loan Forgiveness program.
According to the order, illegal purposes include aiding and abetting violations of immigration laws; supporting gender-affirming care for minors; and engaging in a pattern of aiding and abetting illegal discrimination. It charged the education secretary with proposing the necessary revisions to the program.
In his letter, Bay contended that modifying the definition of “qualified employer” to exclude employers based on activities they undertake in their public interest work “has no basis in the PSLF statute.” He also said it “contradicts the statute’s intent of encouraging individuals to pursue public service.”
Bay noted that Congress provides in the Public Service Loan Forgiveness statute a list of eligible “public service jobs,” which includes prosecution, defense or legal advocacy on behalf of low-income communities. He said the statute does not contain exclusions of organizations based on specific activities or authorize retroactive changes to the program.
“To the extent that the department would apply any amendment retroactively to cancel PSLF eligibility for currently qualifying employers, this action would also be contrary to the PSLF statute and violate due process protections,” Bay wrote.
Efforts to disqualify employers from the Public Service Loan Forgiveness program also would violate due process protections outlined in the Fifth and 14th Amendments, as well as other constitutional rights, Bay said.
“Whether an organization’s activities give rise to civil or criminal liability requires an inquiry into the law and facts surrounding such actions,” Bay wrote in his letter. “Any determination that an employer is engaging in criminal conduct may only be made following a comprehensive adjudicatory process that contains due process protections.”
He added: “The EO does not consider which entity would perform this constitutionally required inquiry, or if the department is equipped to do so in a manner that comports with due process.”
According to Bay’s letter, the ABA additionally opposes proposed changes to the Public Service Loan Forgiveness program because they would harm communities in need.
“Each poorly communicated proposal to restrict the program creates uncertainty and mistrust that the department may attempt to improperly and unlawfully apply such restrictions retroactively despite years of borrowers’ detrimental reliance on the program’s promise,” Bay wrote. “The program must not be arbitrarily subjected to limiting preferences of an administration.”
The ABA was deemed to be a qualified public service organization, which entitled its employees to participate in the program, as a result of a 2020 settlement in a lawsuit by the ABA and four lawyers. The ABA had sued after the Department of Education decided in 2016 that its employees were no longer eligible to participate in the program that began in 2007.
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