The Association of Private Sector Colleges and Universities (APSCU), on behalf of its more than 1,650 member institutions, filed a lawsuit July 20 in the federal District Court in Washington, DC seeking to block the Department of Education's final “Gainful Employment” regulations. APSCU's complaint asserts the regulations represent regulatory overreach, conflict with congressional intent, were developed through a flawed process, and implemented without adequately exploring the impact on minorities, women, and jobs.
"This lawsuit is necessary in order to protect 3.8 million students who attend private sector colleges and universities today and those who will attend our schools in the future,” said Brian Moran, APSCU Interim President and CEO. “By issuing the Gainful Employment regulations, the Department of Education has clearly exceeded its statutory authority. The Department's overreach employs metrics that are at odds with those Congress enacted to determine Title IV eligibility. The Department has promulgated hundreds of pages of text to define two words. Adding complexity not clarity, the Department's unlawful regulations will hurt students and jobs, a consequence made still worse by a very uncertain economy.”
APSCU's complaint charges that by going beyond the HEA’s statutory language requiring private sector colleges and universities to prepare students for gainful employment, the Department of Education has created a situation whereby institutions will be forced to narrow enrollment policies and deny admission to students who are at risk of failing to meet the Department’s arbitrary debt-to-income and repayment metrics.
“This will have a devastating impact on non-traditional students, individuals who on paper may represent greater risk for satisfactory completion, but who in practice often persevere and who view access to private sector colleges and universities as a vital path to upward mobility,” Moran said.
In addition, APSCU's complaint argues that the Gainful Employment regulations are “arbitrary and capricious” because they punish schools for outcomes that already are a matter of historical fact, rely on data which are incomplete and unreliable, and employ a process that denies institutions adequate procedural protections.
APSCU's complaint also asks the court to overturn the Department's Program Approval regulations, 75 Fed. Reg. 66,665, and its Reporting and Disclosure regulations, 75 Fed. Reg 66,832, which the Department adopted last October. APSCU contends those regulations are likewise beyond the Department’s statutory authority and arbitrary and capricious in numerous respects. In particular, in the Program Approval regulations, the Department asserts¬—without any foundation in the HEA—the authority to preempt institutions’ decisions about which types of programs prospective students will find useful to their career aspirations.
APSCU believes that in adopting these regulations, the Department has violated the Constitution, the HEA, and the Administrative Procedure Act. Moran stressed that if left in place, these regulations will do great harm to students and schools. These regulations, if allowed to stand, will stifle education innovation, cost jobs, and displace minority and non-traditional students.
A copy of APSCU’s complaint is available online.
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