The Trump administration’s Department of Education recently made a subtle change to Biden-era regulations that were designed to ensure for-profit colleges provide quality programs.

Under the adjusted policy, for-profit colleges can now count proceeds from online courses that are not eligible for federal aid toward their 90-10 calculation, an accountability measure that requires 10 percent of a college’s total revenue to be from nonfederal sources.

Opponents of the change say the new policy will likely have minimal consequences, but they are alarmed by how it came to be: They worry the Trump administration is finding new shortcuts to advance its political priorities without public feedback instead of going through the rule-making process to amend the regulations.

“The problem is if you allow this kind of arbitrary and capricious behavior on a relatively small gatekeeping mechanism, tomorrow, you may read that a whole bunch of other much more foundational gatekeeping metrics are also not to the administration’s liking” and have been nullified, said Barmak Nassirian, an official at Veterans Education Success, a consumer protection group that supports the Biden-era regulations. If that’s the case, “we don’t live under a government of laws, we live under a government of unilateral declaration.”

Proponents of the Trump change say the revision was made for clarity, not to adjust the regulation at its core, and therefore it does not require a formal rule-making session. Jason Altmire, president of Career Education Colleges and Universities, the for-profit advocacy association, said in a statement that the revision will allow the department to enforce the 90-10 rule “in a more even-handed way.”

Up until 2023, certain grants from the Department of Veterans Affairs, like the GI Bill, could count toward the 10 percent requirement. Critics argued that this so-called 90-10 loophole incentivized institutions to aggressively recruit military service members and veterans in order to meet the quota while providing low-quality programs.

The rule change not only barred for-profit colleges from counting veteran grant dollars but also revenue from certain online programs toward the 10 percent. The Trump administration reversed the latter prohibition earlier this month, arguing that the ban was “procedurally deficient” since the Biden administration used the preamble—not the actual regulations—to make it clear that online programs weren’t eligible for the calculation.

“If the department intended to break new ground in the regulation by creating a new distinction for ineligible programs … one would expect it to do so on clear terms,” department officials wrote in the notice.

Ellen Keast, the department’s deputy press secretary, said that it was Biden, not Trump, who weaponized regulatory powers.

The Democrats went “far beyond the department’s legal authority and included anti-competitive changes,” Keast said. “Unlike the previous administration, the Trump administration will foster innovation and competition in the higher education marketplace to improve and expand students’ access to high-quality education.”

But critics of the change say both the preamble and the regulation text specifically ban online programs.

The Biden-era regulations stated that some programs that were ineligible for federal student aid could count as nonfederal revenue as long as they were “provided by the institution and taught by one of its instructors at its main campus.” Programs conducted through a contract with a third party, such as an auto manufacturer, could also count as long as they were taught “at an employer facility.” But an institution could not count revenue from a program when it merely provided facilities for test preparation or proctoring, the regulations said.

Opponents also point to discussions during the rule-making process as further evidence of the intent to exclude distance education revenue. For example, during a policy discussion in March 2022, one official said they were “concerned” that the programs being offered “off-site” may not be of “adequate quality,” according to the transcript.

“The notion that unless every word of the preamble is somehow echoed in the reg is a perversion of the regulatory process,” said Nassirian, who participated in that rule-making process. He added that the department’s notice is an attempt to “read the reg not as it is written, but as the department wishes it were.”

Supporters of the change, however, argue that the transcript and regulatory language are not enough.

“Any mention of ‘on location’ or ‘off-site’ is not clearly discussing modality because all programs, including distance education programs, have a designated location,” said Jordan Wicker, a government affairs official at CECU. “If the text of the final rule were clear enough to state the substantive policy of the rule, then no further clarification would be needed in the preamble.”