Upholding Title IX Principles in Collegiate Athletics

Written with Debbie Osgood [1]

Black and White Soccer Ball on Green Grass Land during Daytime

Title IX of the Educational Amendments of 1972 prohibits sex discrimination, including sexual harassment and sexual violence, in educational institutions that receive federal financial assistance.  Complementing Title IX at the federal level are the Clery Act and the Violence Against Women Act, both of which seek to protect individuals against discriminatory and violent behavior on the basis of sex.  Different state statutes and institutional policies offer further safeguards within the higher education landscape, and now, new NCAA regulations have been added to the fold for those who are members of the intercollegiate sports’ governing body.  Given our backgrounds at the U.S. Department of Education and the NCAA, the values of gender equity and intercollegiate sports resonate strongly with us and with the other attorneys in the Education Group at Hogan Marren Babbo & Rose, and we would thus welcome the opportunity to assist in furthering those values within your campus

There is no doubt that Title IX has been responsible for ushering in a new era of educational benefits to college campuses across the country, particularly in the area of athletics, where female participation has skyrocketed over the last few decades.  By the same token, Title IX has pushed colleges and universities to take greater responsibility in responding to reports of sexual harassment and violence incidents on campus, including within the athletics department.  Indeed, such incidents often tend to get magnified when athletics is involved, given the visibility of student-athletes and athletics personnel, and the high stakes that usually accompany such enterprise.  One example is the recent Baylor University sexual assault scandal that led to the ouster or resignation of the University President, Athletics Director, Head Football Coach, Title IX Coordinator, and others, as well as to multiple lawsuits and unfavorable PR coverage.  This episode  illustrates the magnitude of the adverse effects that such incidents can bring upon an institution and, more importantly, the constituencies that it serves.

It is for that reason, as well as the alignment of Title IX principles with NCAA values, that the collegiate sports authority – although not itself directly covered by Title IX – has taken on a more active approach towards better positioning its 1100-plus members to effectively address sexual harassment and violence on campus.  The NCAA has not been shy to use its bully pulpit to seek change on issues that touch upon its mission, such as confederate flag sponsorship, Native American inspired mascots, and transgender restroom usage, and this area is no exception.  Since 2012, the NCAA has spearheaded or sponsored commissions, task forces, summits, and the production of a series of materials and resources, all designed to foster the appropriate treatment of sexual harassment and violence within athletics departments and the broader campus community.[2]

The latest articulation of this approach is the NCAA Board of Governors Policy on Campus Violence, adopted earlier this month as a reaffirmation of its commitment to advance a positive athletics culture that revolves around respect and empathy for all.[3]  Under the Policy, each University President, Director of Athletics and Title IX Coordinator must, on or before May 15, 2018 (and each year thereafter) certify that:

  • The athletics department is knowledgeable about and compliant with campus policies and processes regarding sexual violence prevention,
  • Those policies and processes, and the name and contact information for the Title IX Coordinator, are available within the athletics department, and
  • All student-athletes, coaches and staff have been trained on sexual violence prevention.

While the Policy is silent on penalties or other implications of non-compliance, the failure to abide by this guidance, at the very least, increases the likelihood of running afoul of the law, with all attendant consequences thereto.

And, even though some commentators have criticized the new NCAA rules as simply reiterating existing federal requirements, it is clear that the new rules seek to encourage college athletics to take a more prominent role in preventing and addressing sexual violence.  In announcing its new Policy, the NCAA stated, as one overarching principle for the new rules, that intercollegiate athletics programs should “utilize their platform to serve as leaders on campus through engagement in and collaboration on efforts to support campus-wide sexual violence prevention initiatives”.

It is clear that the NCAA is sending a strong message that, given their unique role on school campuses, athletics departments must not only make sure their “houses” are clean, but also must help keep the entire university neighborhood clean  To effectively discharge these new NCAA obligations, then, it is incumbent upon athletics departments to establish the “tone at the top”, the level of inter-campus collaboration, and the availability of resources necessary to ensure compliance.  With extensive experience and expertise in both collegiate athletics and sexual harassment and violence prevention, the Education Group at Hogan Marren Babbo & Rose is well positioned to serve as one such resource to colleges and universities, and their athletics departments.  In this constantly changing legal environment, our Group offers a plethora of effective and targeted services, including the performance of compliance assessments and audits of institution/department sexual violence programs, the development and revision of institution/department policies and procedures consistent with governing law and regulation, and the provision of education and training to all applicable constituencies on campus.

[1] Debbie Osgood and Jay Rosselló are partners in the law firm of Hogan Marren Babbo & Rose (“HMBR”).  Ms. Osgood previously served as National Enforcement Director at the U.S. Department of Education, Office for Civil Rights, and Mr. Rosselló as Director of Legal Affairs and Enterprise Risk, Ethics & Compliance at the National Collegiate Athletic Association.  HMBR’s roster also includes the Department’s former General Counsel, Charlie Rose, and former Deputy General Counsel for Postsecondary Education and Regulatory Services, Dennis Cariello.

[2] See http://www.ncaa.org/sport-science-institute/sexual-assault-and-interpersonal-violence, including the sexual violence prevention tool kit contained therein.

[3] See http://www.ncaa.org/sport-science-institute/topics/ncaa-board-governors-policy-campus-sexual-violence.

 

Affirmative Action Under Review? A Reminder of a College’s Ongoing Responsibilities

Last week, The New York Times published a report suggesting that the U.S. Department of Justice would start investigating intentional race-based discrimination in university admissions. As the story evolved, it became known that the report was actually an internal job posting that did “not reflect a new policy or program or any changes to longstanding DOJ policy,” according to a DOJ spokesperson. Later in the week, The Wall Street Journal reported that the posting sought volunteers for a complaint by an Asian-American group that has accused Harvard University of race bias in admissions.

Whether the report does indeed signal a shift in policy or simply requests volunteers for a specific investigation, the story offers an opportunity for colleges to reconsider when, why, and how they use race in their admissions.  To that end, it is important to provide a sober review of the requirements that colleges must observe for their race-conscious admissions policies.

  • Drawing the Link: Connect Diversity to the College’s Mission with “Concrete and Precise” Goals

In 2016, the Supreme Court in Fisher v. University of Texas at Austin lauded UT for the expression of its goals in developing its race-conscious admissions process.  Justice Kennedy wrote that a college needs to identify the educational values that it seeks to realize through its policy.  These values at UT included: the destruction of racial stereotypes, the promotion of cross-racial understanding, the preparation of the student body for an increasingly diverse workforce and society, and the cultivation of a set of leaders with legitimacy in the eyes of the citizenry.  In addition, the Court noted UT’s striving for an academic environment that offers a robust exchange of ideas, exposure to different cultures, preparation for a diverse workforce, and the acquisition of competencies required of future leaders.  Colleges that want to consider race in their admissions process need to express similarly thoughtful explanations for their programs.

  • Data! Data! Data! Evidence is Key If Your Admissions Policy is Challenged

In Fisher, the Majority was impressed with UT’s data collection.  In the real world, not every college has the resources or personnel to match UT’s ability to assess their program.  However, colleges need to have data on hand if their policies are ever questioned.  The Court does give some insight into the types of data that are required.  First, hard numbers are good, but numbers do not tell the whole story.  Relying solely on the number of minority students on campus, pre- and post-policy, is not sufficient.  However, nuanced quantitative data, such as measuring the number of minority students across freshman survey courses in specific disciplines, would satisfy this requirement.  Second, the Court gave weight to UT’s use of anecdotal evidence, lauding the university’s interviews, retreats, and student, faculty, and staff surveys.  Third, the Court required that the reassessment of data should be “done with care,” followed by a “reasonable determination” as to whether the stated policy goals are being met.  Colleges should be mindful to compile data, quantitative and qualitative, that they can use to assess the effectiveness of their admissions policy.

  • Diversity is a Journey, Not a Destination: The Ongoing Responsibility Requirement

It is very important to note that if a college finds a workable way to include race into its admissions process, the college’s responsibilities are not fulfilled under the law.  The Fisher court requires ongoing assessments of whether or not the admissions program satisfies the college’s measureable goals.  Justice Kennedy writes that good faith efforts to comply with the law did “not diminish, however, the University’s continuing obligation to satisfy the burden” on colleges.  He adds that the university should engage in “periodic reassessment” of the effectiveness of their admissions program, considering the school’s unique experiences.  It is critical that colleges realize that even if they craft a perfect plan, periodic assessment of that plan is a required element to escape negative judicial scrutiny.  And, importantly, when the policy doesn’t meet their stated objectives, the plan should be reassessed and adjusted.

 

In sum, a university should 1) identity why diversity is a compelling interest at their campus; 2) use data to scrutinize the fairness of its admissions program; and 3) reassess whether the policy is achieving its stated goals and refine their policy as the data demands.

While affirmative action programs might be under more scrutiny in the Trump Administration, colleges and universities can continue to pursue their goal of a diverse student body by following the judicial requirements set forth for these race-conscious admissions policies.

Welcome to the New Higher Ed Law Blog!

Another school year is just around the corner.  Students will return to their dorms later this month.  Professors are busily putting the final touches on their syllabi and finishing off summer writing projects.  Administrators are hurriedly planning budgets, forming strategies, and seeking guidance on what may lie ahead for the new academic year.

Here at the Education Practice at HMBR, we are planning our own new “school year,” of sorts.  We have restarted our Higher Ed Law Blog!  We look forward to using these pages as a way to connect with you and keep you informed.  We plan on bringing you news pieces, hearings announcements, conference recaps, and analytical pieces to keep you up to date on the latest developments in higher education and to give you the advantages you need to thrive in an increasingly competitive marketplace. We also expect to start posting on the connection between higher education and related topics, such as labor, healthcare, and others.

As you read our blog, you can continue to rely on HMBR’s deep knowledge of, and multi-disciplinary approach, to higher education, drawing on our experience working in the private as well as the public sector.  We continue to be passionate about higher education and helping you achieve your academic, business, and institutional goals.

To get started, here is a list of developments that we are monitoring for the upcoming academic year as well as some suggestions about how we can help you navigate these issues:

Title IX Guidance – As has been widely publicized, the U.S. Department of Education is considering whether and, if so, how to revise its guidance on sexual harassment and sexual assault. While we cannot predict exactly what any new guidance will say, we recommend that your institution be ready with a proactive strategy for communicating to your community your values and commitment to compliance and fairness for all parties.  If the Department does issue revised guidance, we will send out a newsletter to you explaining the changes, offering new training sessions, and providing you with a path forward in this latest era of Title IX enforcement.

Academic Freedom and Free Speech – Most experts are predicting another year of high profile free speech controversies on campus. These eruptions can lead to unwanted publicity and disruptive campus upheaval that can negatively impact an institution’s public image and reputation.  However, with the right policies, colleges can continue to be a place where free expression is respected and all community members feel valued.  HMBR is well-equipped to provide training sessions on academic freedom and free speech issues as well as to provide comprehensive reviews of your campus policies and to assist you in writing new policies or handling specific incidents as they occur.

The Janus Case and Labor Issues – The Supreme Court is likely to hear a challenge that could put an end to the practice of public sector unions charging fees to non-members. The impact of the case could greatly reduce public sector unions’ political authority and potentially have a lasting effect on collective bargaining agreements for public institutions.  In addition, the movement to unionize adjunct faculty and graduate students is showing no sign of stopping.  HMBR offers a team of attorneys experienced in representing labor unions and management in a full range of labor and employment matters, providing our clients with well-informed perspectives that address complex legal and regulatory requirements as well as your critical business demands.

Additional Issues – New and Revised Financial Aid Regulations; Accreditation Issues and Program Modifications; Undocumented Students, DACA, and “Sanctuary Campuses”; Student Demographic Changes and Its Impact on Populations and Services; International Student Recruitment and Support; Advances in Education Technology and Delivery Systems

 

HMBR is uniquely positioned on all of these topics and more.  We are true problem-solvers with the experience, knowledge, and ability to provide you with comprehensive legal representation to help you successfully overcome the hurdles your institution faces.  While the new academic year will definitely have its share of challenges, our attorneys routinely assist clients in structuring and executing a wide range of creative solutions that assist colleges and universities in moving forward and achieving their institutional goals.

We look forward to keeping you informed here at the Higher Ed Law Blog.  If you have any questions, concerns, or would like us to post on a topic of interest to you, please feel free to contact us.

Here’s to a successful 2017-2018 Academic Year!

Day 3 Recap of the National Association of School Financial Aid Administrators Conference

The 2015 NASFAA Conference in New Orleans had a little excitement Monday night.  There were some protesters at the parade Monday night to protest the high cost of post secondary education. The protesters were treated politely and didn’t interfere with the fun. Tuesday’s sessions were conducted by school officials and officials from the Department and covered topics to assist aid administrators such as resources or tools to make life easier for the financial aid department There were COD updates,150% subsidized loan limits, help with awarding policies and State Authorization concerns. Sessions were geared towards clarifying current requirements more than providing new information.

A new proposed federal policy change that NASFAA is supporting is the use of prior prior year or PPY income data in preparing FAFSAs. The proposal would allow FAFSAs to be filed as early as September and current data seems to support that low income students would benefit most. Opponents of the proposal believe that it will increase Pell Grant spending and while NASFAA agrees, the upside would be more low income students being made aware that college is really a viable option for them. Federal town hall sessions enabled attendees to address questions and concerns to Department officials. One common complaint is that the regions are behind in issuing PPAs, program review reports, and final determination letters. While no new information was presented the town hall meetings were very valuable to the financial aid community as a means to bring important issues directly to the attention of policy officials.

Day One & Two Recap of the 2015 National Association of School Financial Aid Administrators Conference

On July 19, the National Association of School Financial Aid Administrators (NASFAA) held its 2015 Conference in New Orleans.  The conference program kicked off with the Keynote speaker Hill Harper, well known actor from CSI NY but also an author and philanthropist as founder of the Manifest Your Destiny Foundation, dedicated to empowering under-served youth through mentorship, scholarship, and Grant programs.

A Federal Town Hall session was held by U.S. Department of Education officials Jeff Baker, Lynn Mahaffie, and Carney McCullough plus several NASFAA officials. They answered questions from the audience on topics of current interest to the community.

The Session on Gainful Employment was, understandably, very well attended. The focus of the presentation included information on changes from the original GE reporting requirements to the current ones and some typical errors schools are making in reporting data and how to avoid them.

Several sessions revolved around projects within NASFAA to Re-imagine and Redesign Student Financial aid; reducing administrative burden, and simplifying R2T4 and the FAFSA. Other sessions focused on very specific topics of importance to the financial aid office that can be applied to real life situations such as unaccompanied homeless youth, R2T4 for module programs, verification changes, professional judgment and, new additions to consumer information. In addition to the specific topics related to financial aid, sessions addressed such topics as helping students borrow responsibly, and working with undocumented students.

Day one ended with an honest-to-goodness New Orleans parade from the Hyatt Regency to the French Quarter. The parade included a Brass Jazz band, a Boy Scout band and about 3,000 financial aid administrators. They do really know how to have a good time.

PROPOSED REGULATION ON OVERTIME PAY EXEMPTIONS

On March 13, 2014, President Obama signed a Presidential Memorandum directing the Department of Labor (the “DOL”) to update the regulations defining which white collar workers are protected by the Fair Labor Standards Act’s (the “FLSA’s”) overtime standards.  On July 6, 2015 the DOL published the proposed rule defining and delimiting the overtime exemptions for executive, administrative and professional employees.

The FLSA guarantees overtime pay when an employee works over 40 hours in a workweek.  However, certain executive, administrative and professional employees are exempt from these overtime pay protections.  To be considered exempt, employees must: (1) be paid a predetermined and fixed salary that is not subject to reduction because of variations in the quality or quantity of work performed (the “salary basis test”); (2) the amount of salary paid must meet a minimum specified amount (the “salary test”); and (3) the employee’s job duties must primarily involve executive, administrative, or professional duties (the “duties test”).

Under the current regulations, an executive, administrative, or professional, employee must be paid at least $455 per week ($23,660 per year for a full-year worker) in order to come within the standard exemption.  The DOL’s proposed changes focus on what the DOL has recognized as the best single test of exempt status, the salary test.

In order to maintain the effectiveness of the salary test, the DOL proposes to set the standard salary level equal to the 40th percentile of earnings for full-time salaried workers (the DOL projects that the 40th percentile weekly wage in the final rule would likely be $970, or $50,440 for a full-year worker).  Furthermore, in order to prevent the levels from becoming outdated, the DOL is proposing to include in the regulations a mechanism to automatically update the salary and compensation thresholds on an annual basis.

While salaried workers such as teachers, academic administrative personnel, physicians, lawyers, judges and outside sales workers are not currently subject to the salary test, educational institutions may still anticipate an impact in entry and mid-level professional positions such as student life, development, administration and academic affairs.  Educational institutions with these types of employees that earn the current weekly salary level of $455 but less than the 40th percentile of earnings would become entitled to overtime protection under the FLSA.

Educational institutions have options in regards to how they decide to implement and administer the proposed rule change.  An educational institution, may of course, keep their current employment practices and pay the overtime wage.  An educational institution may also decide to implement a cap on hours or a reduction of hours for employees during the workweek, and then hire additional part time employees to cover the extra work.  If an employee’s salary is close to the 40th percentile of earnings threshold, an employer may raise the employee’s base pay to the threshold to avoid having to pay overtime.  Finally, educational institutions may lower hourly base pay to offset any overtime hours that may be incurred, as long as the hourly base pay remains above minimum wage.

The proposed rule is subject to public comments until September 4, 2015. After review of the comments, the DOL may issue a final rule change as soon as 2016.

House Committee Approves Labor-HHS Appropriations Bill

Earlier today, as reported in a Committee press release, the House Appropriations Committee approved the draft fiscal year 2016 Labor, Health and Human Services funding bill on a vote of 30-21.   The draft bill includes “$153 billion in discretionary funding, which is a reduction of $3.7 billion below the fiscal year 2015 enacted level and $14.6 billion below the President’s budget request.”  The bill text is substantially the same as the draft passed out of subcommittee on June 17.  The only changes to the text, as discussed in the press release, include the following amendments:

  • Rep. Cole – The amendment makes technical and non-controversial changes to the bill and report. The amendment was adopted on a voice vote.  
  • Rep. Roybal-Allard – The amendment designates $750,000 in funding within the Children and Families Services Programs account to be used for a Child Poverty Study. The amendment was adopted on a voice vote.
  • Rep. Kilmer – The amendment adds report language urging the Department of Education to provide clear and timely guidance to local school districts on how to calculate tax rates for the purposes of receiving certain types of federal aid. The amendment was adopted on a voice vote.
  • Rep. Harris – The amendment prohibits funding to implement or enforce a National Labor Relations Board ruling that allows certain groups of employees within a larger company to form separate unions. The amendment was adopted on a voice vote.
  • Rep. Kaptur – The amendment adds report language directing the Secretary of HHS, in consultation with the Department of Veterans Affairs (VA), to provide a report on certain prescription drug costs for Medicare, Medicaid, and the VA, as well as comparisons of these costs to other countries. In addition, it directs HHS to review and report on steps taken to competitively reduce prescription drug costs since 2001. The amendment was adopted on a voice vote.

As the bill summary for the draft bill explains, the bill funds the Department of Education at $64.4 billion, which is $2.8 billion below the fiscal year 2015 level and $6.4 billion below the President’s budget request.”  Notably, the bill retains prohibitions on the Department of Education from “moving forward with regulations to establish a college ratings system, place new requirements on teacher preparation, define ‘gainful employment’ and ‘credit hour,’ and dictate how states must license institutions of higher education.”  Rep. Rosa Delauro (D-CT) attempted to remove the spending prohibition related to gainful employment, but her amendment was defeated in a voice vote.

The bill also contains the following elements related to education:

  • Special Education – The bill includes $12 billion for IDEA special education grants to states, an increase of more than $500 million over the fiscal year 2015 enacted level, which will increase the federal share of special education funding to states from 16 percent to 17 percent.
  • Charter Schools Program – The bill includes an increase of $22 million over the fiscal year 2015 enacted level for grants to support the creation of new charter schools, for a total of $275 million.
  • Pell Grants – The maximum Pell Grant award is increased to $5,915, funded by a combination of discretionary and mandatory funds.
  • Impact Aid – The bill provides nearly $1.3 billion for Impact Aid, an increase of $10 million above the current enacted level.

The Senate Appropriations Committee takes up its version of the Labor-HHS appropriations bill tomorrow at 10:00am.  The Senate appropriations subcommittee approved the Labor-HHS appropriations bill on June 22.

 

Amendment to Remove Gainful Employment Rule Spending Limitation Fails in House Approps Committee

The House Committee on Appropriations is currently considering the draft appropriations bill passed by the House Appropriations Subcommittee on Labor, Health and Human Services, Education, and Related Agencies on June 17.  As mentioned previously, Section 309 of this bill contains a limitation on the use of funds to implement and administer the gainful employment rule.  Rep. Rosa Delauro (D-CT) offered an amendment (at 5:24 in the video) to remove this limitation from the  draft.  Rep. Tom Cole (R-OK) rose to the defense of the provision.  The amendment failed on a voice vote.

Senate Sub Committee Passes Labor-HHS Appropriations Bill; Full Committee Vote Tomorrow

In a markup held yesterday, the U.S. Senate Appropriations subcommittee on Labor, Health and Human Services, Education and Related Agencies (“Labor-HHS”) released a summary statement setting forth the key elements of the a $153.2 billion appropriations bill that passed the sub committee.  The full Senate Committee on Appropriations will take up the draft bill on Thursday.  The House Committee on Appropriations is currently considering the draft bill passed by the House Appropriations Subcommittee on Labor, Health and Human Services, Education, and Related Agencies on June 17.

“While the measure is $3.6 billion below the FY2015 spending level,” the summary statement notes, “the subcommittee increased funding for the National Institutes of Health, Community Health Centers, Head Start and the Child Care and Development Block Grant. ”  Of note, the bill would increase the maximum Pell Grant award from $5,775 in the 2015-16 school year to an estimated $5,915 for the 2016-17 school year.  In addition, the bill “prohibits the Department [of Education] from moving forward with regulations or policies to develop or implement a college ratings system, define gainful employment, establish requirements for the State authorization of higher education programs, define credit hour, and establish a new accountability framework for teacher preparation programs.”  Notably, Sections 309-313 of the House version (also see the draft conference report) of the appropriations bill has a similar limitation.

The other highlights for the Department of Education, as set forth in the summary, include:

  • The bill funds the Department of Education at $65.5 billion, a $1.7 billion decrease from FY2015.
  • Title I Grants to LEAs – $14.560 billion, a $150 million increase above FY2015. Title I provides basic and flexible funding to low-income school districts, that allows States, local school districts, and schools to decide how to best use limited resources improve student outcomes.
  • Individuals with Disabilities Education Act (IDEA) Grants to States $12.415 billion for grants to States under part B and C of the IDEA, a $125 million increase above FY2015, including preschool grants and grants for infants and families. These programs support special education services for children with disabilities from birth through age 21.
  • Charter Schools – $273 million, an increase of $20 million above FY2015. This program supports school choice through the planning, design, initial implementation, and expansion of successful charter schools.
  • Impact Aid – $1.289 billion, level with FY2015. The Committee recommendation maintains support for the Impact Aid program which provides flexible support to local school districts impacted by the presence of federally owned land and activities, such as military bases. The Committee rejects the administration’s proposed elimination of the Federal property program.
  • Supporting Effective Educator Development (SEED) program – The Committee increases the SEED set-aside within the Teacher Quality State Grants program from 2.3 percent to 5 percent. This program supports evidence-based approaches for recruiting, training, or providing professional enhancement activities for teachers and school leaders, particularly for high-need schools most likely to face shortages in these areas.
  • Supports State and Local Flexibility in Education – The Committee recommendation includes a new general provision affirming that the Federal government cannot mandate or incentivize in any way the adoption of any specific standards or assessments, including Common Core.

It is notable that Senate Democrats intend to block all appropriations bills in an attempt to force negotiations that will end domestic spending caps under the Budget Control Act.

DC Court Upholds Gainful Employment Rule

Earlier today, the District Court for the District of Columbia held that the US Department of Education’s (“Department”)”‘gainful employment‘ regulations—including the current debt-to-earnings test and disclosure, reporting, and certification requirements—survive this court challenge in their entirety.”  [JUNE 24 UPDATE – here are the Chronicle of Higher Education and Inside Higher Ed reports on the decision.] [ANOTHER JUNE 24 UPDATE – here are the statements from Department Secretary Arne Duncan and  APSCU’s General Counsel Sally Stroup.]  This follows a disappointing decision from the Southern District of New York also upholding the validity of the Department’s Gainful Employment Rule (“GE Rule”) published by the .  In so doing, the Court dealt an important win to the Department, although the effort does not seem to have concluded.  Not only may plaintiff Association of Private Sector Colleges and Universities (“APSCU”) appeal this decision, but the currently pending spending limitations in the Labor HHS appropriations bill preventing the Department of Education from using federal funds to “implement, administer, or enforce” the gainful employment rule (see page 119).

We will have a complete analysis of the decision in short order.    On a first read, however, it was interesting that the court accepted the Department’s argument that the clause “in a recognized occupation” in the phrase “gainful employment in a recognized occupation” sufficiently modified “gainful employment’ to make the phrase ambiguous enough to allow the Department to impose a debt-to-income metric.  Whatever the merits of the the GE Rule or the other merits of the decision, this seems pretty tenuous.  Indeed, the plain meaning of that phrase “recognized occupation” would seem to referred to something like Standards of Occupational Classification Codes.

Also interesting is that the Court disregarded the prior administrative rulings in cases like In re Academy for Jewish Education, where the Department argued that the program did not lead to gainful employment because the education did not provide skills to the student that would enable to them to hold a job.  This APSCU Court found that the because the training in question did not lead to any employment, “the Department had little reason to settle on a more nuanced definition for the full ‘gainful employment’ provision.”  This seems to miss the mark – the point is that the Department’s position in that case (and other administrative cases like it) was the Department’s interpretation of the whole phrase. Continue reading “DC Court Upholds Gainful Employment Rule”