As many who read this blog will recall, the Association of Private Sector Colleges and Universities (APSCU) filed a complaint in D.C. federal district court challenging the U.S. Department of Education’s misrepresentation, incentive compensation, and distance education-state authorization regulations, which became effective July 1, 2011. On July 12, 2011, the district court issued its decision in the case and vacated the distance education regulation (34 C.F.R. § 600.9(c))–thus allowing the remaining regulations to take effect.
Both APSCU and the Department appealed the decision of the district court to the United States Court of Appeals for the District of Columbia Circuit. Oral argument occurred last February. Today, June 5, 2012, the court of appeals issued its ruling in the case. A very quick review of the opinion indicates that the court
- found that the Department exceeded the HEA to the extent the misrepresentation regulations authorize the Secretary to sanction an institution without providing it with statutorily required protections;
- otherwise let the misrepresentation regulations stand;
- sustained the incentive compensation regulations, with two relatively minor exceptions that the Department will be able to correct on remand;
- vacated the distance education regulation due to the Department’s violation of the APA; and
- let stand the state authorization regulations.
I will post additional observations after analyzing the court’s 55 page opinion.