As a threshold matter, the changes impact the preparation of the annual security report that institutions of higher education must publish and distribute by October 1 of each year on crime statistics and campus security policies.  Colleges and universities will be required to add to their reporting requirements "domestic violence, dating violence and stalking incidents that were reported to campus security authorities or local police agencies."

Institutions must also report whether a victim was "intentionally selected because of the actual or perceived . . . national origin [or] gender identity . . . of the victim."  These two categories (national origin and gender identity) are in addition to the current categories of actual or perceived race, gender, religion, sexual orientation, ethnicity or disability of the victim.

As a part of the annual security report, a school must include a much more expansive and prescriptive statement of policy, including among other things, the institution's programs to prevent domestic violence, dating violence, sexual assault, and stalking, as well as procedures the institution will follow (and standard of evidence used) during any institutional proceedings arising from a report of such incidents.

The changes to the Clery Act "shall take effect with respect to the annual security report . . . 1 calendar year after the date of enactment of this Act, and each subsequent calendar year." Assuming the President signs the law in March 2013, under one reading it appears the annual security report due by October 1, 2014 (covering calendar years 2011, 2012, 2013) must include the new data and policies.  Alternatively, it could mean the security report due by October 1, 2015 for the calendar years 2012, 2013, 2014 must include the new data and policies, thus allowing adequate time for implementation. The Department of Education should issue guidance very soon after enactment to provide clarity.  

On higher education, the plan seeks to link "value, affordability, and student outcomes . . . [to] determinations about which colleges and universities receive access to federal student aid." This will be done either by "incorporating measures of value and affordability into the existing accreditation system[,][] or by establishing a new, alternative system of accreditation . . . [for receipt of] federal student aid based on performance and results." The plan re-opens the issue of the reach of the federal government into historically non-governmental functions.  

At the K-12 level, when the Elementary and Secondary Education Act (ESEA) did not get reauthorized, the Administration proceeded to issue legally questionable conditional waivers. Just last week Senator Lamar Alexander (R-TN), Ranking Member of the Senate Committee on Health, Education, Labor and Pensions questioned the authority for the conditions in a hearing on waivers.  

Whether executive action will be invoked to force changes in tuition or a school's eligibility for Title IV student aid remains an open question.  Colleges, universities, and accreditors should remain alert. 

Trained as a lawyer, Blews comes to the position with a deep background in higher education issues and policies, having served for 28 years as the president of the Association of Independent Colleges and Universities of Michigan.  

Those offering greetings and accolades included U.S. House members Dave Camp and Tim Walberg of Michigan, David Warren--President of the National Association of Independent Colleges and Universities, Molly Corbett Broad--president of the American Council on Education, and Kim Phipps, CCCU board chair and president of Messiah College (PA).  

With increasing fiscal constraints, a likely uptick in federal regulatory and sub-regulatory activities, and accreditation on deck for HEA reauthorization, President Blews will have plenty on which to engage.   

On January 12, I will open a new law firm--Kent D. Talbert, PLLC--and continue to represent clients on education-related legislation, regulations, compliance matters, and cases.  My address and phone will remain the same:  1455 Pennsylvania Avenue, Suite 400, Washington, DC 20004 and 202.652.2324.  I will continue our education blog--www.educationlawreview.com--and have a new email, kent.talbert@kenttalbertlaw.com.    

On January 14, Bob Eitel will join Career Education Corporation (CEC) as Vice President of Regulatory Operations, National Accredited Institutions, based in Schaumburg, Illinois.  At CEC, he will join his U.S. Department of Education colleague, Diane Jones (formerly Assistant Secretary of Education for Postsecondary Education) who now serves as CEC's Senior Vice President for External and Regulatory Affairs.  Bob will forward his new company contact information in the next few weeks.  In the interim, you may reach Bob at bob.eitel@verizon.net.

We are excited about these changes, and thankful to the clients, friends, and colleagues who have supported our professional endeavor over the last three years.  We look forward to keeping in touch with each of you.  

The report--which includes six recommendations for improvement (pp. 15-24)--arose as a result of ongoing differences between the federal financial responsibility assessment results and professional determinations of an institution's financial well-being.  

By now, you all know the result of the Supreme Court case in "Obamacare."  (More later on the intriguing language arising from the Medicaid portion of the case and how the ruling might lengthen the strings that attach to federal aid to education up the road.)

For many postsecondary institutions, however, last Saturday's ruling in APSCU v. Duncan will likely have a more immediate impact.  I have not yet read the opinion, but it appears that the Court has vacated and remanded to the Department the debt measure rule (34 C.F.R. § 668.7), the program approval rule (§ 600.10(c)-(d)), and the reporting portion of the reporting and disclosure rule (§ 668.6(a)).  The disclosure portion of the latter rule (§ 668.6(b)-(c)) stands.  The Court's judgment succinctly sets forth the ruling.

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.

Consisting of five sections (Policy, Principles of Excellence for Educational Institutions Serving Service Members, Implementation of the Principles of Excellence, Strengthening Enforcement and Compliance Mechanisms, and General Provisions), the EO requires the Departments of Defense (DOD), Veterans Affairs (VA), and Education (ED) to establish principles that apply to postsecondary institutions receiving student education benefits under the Post-9/11 Veterans Educational Assistance Act of 2008 (Post-9/11 GI Bill), and the Tuition Assistance Program of the Department of Defense.

Specifically, the order will require:  (1) the "Know Before You Owe" financial aid form (under development by the Consumer Financial Protection Bureau and ED) to be made available to students participating in the DOD Tuition Assistance Program; (2) DOD to establish rules for how institutions of higher education gain access to military facilities; (3) VA to begin the process of trademarking the term "GI Bill;" (4) VA, DOD and ED to create a centralized complaint system for service members and veterans to approach with grievances against post-secondary institutions; (5) VA, DOD, and ED to develop improved outcome measures which will be available on ED's College Navigator website; and (6) VA and DOD to develop a plan to strengthen enforcement and compliance measures.

Post-secondary institutions that participate in the Post-9/11 GI Bill and Tuition Assistance Programs should review the Executive Order closely as well as monitor the VA, DOD, and ED web sites for future implementation announcements.

Arising out of the Patient Protection and Affordable Care Act (Pub. L. No. 111-148) the new rule sets forth the requirements for "student health insurance coverage" and defines such coverage as a type of individual market health insurance coverage offered to students and their dependents under a written agreement between an institution of higher education and an issuer. The rule also specifies certain Public Health Service Act requirements are inapplicable to this coverage. 

Colleges and universities will want to carefully review the rule noting the comments and responses of HHS.

The four higher education institutions are Union University (Jackson, TN), East Texas Baptist University (Marshall, TX), Calvin College (Grand Rapids, MI), and Oklahoma Christian University (Edmond, OK).  Dr. C. Ben Mitchell, the Graves Professor of Moral Philosophy at Union University noted "The policy [requiring the health insurance provided by most religious institutions, including CCCU institutions, to cover all FDA approved contraceptives] is an unconscionable intrusion by the state into the consciences of American citizens." President Dub Oliver of East Texas Baptist University framed the issue as "whether the government will force religious people and organizations to do something they believe is wrong."  Dr. Laura Champion, Medical Director of Calvin College Health Services raised the fundamental question of religious freedom, and Dr. Allison Garrett, the Senior Vice President of Academic Affairs at Oklahoma Christian University, finds the Obama Administration's "compromise" to insufficiently address religious colleges that self-insure.

At the time of this posting, there are at least two lawsuits filed by higher education institutions challenging the contraceptive mandate in federal court:  Belmont Abbey College v. Sebelius, Civil Action No. 1:11-cv-01989 (pending in the District of Columbia) and Colorado Christian University v. Sebelius, Civil Action No. 11-cv-03350-CMA-BNB (pending in the district of Colorado).  Additional details on the cases can be found here and here. 

On July 15, 2011, the APSCU filed a notice of appeal concerning the decision by the United States District Court for the District of Columbia regarding APSCU's challenges to the Department's incentive compensation, misrepresentation, and state authorization regulations.  You will recall that the district court decision vacated the state authorization rule but left the incentive compensation and misrepresentation regulations in place.  APSCU’s appeal is now pending before the United States Court of Appeals for the District of Columbia Circuit.

Perhaps more significantly, on July 20, the APSCU filed a second lawsuit against the Department in federal district court in Washington, D.C.  Its complaint seeks to overturn the Department's program approval and reporting and disclosure regulations effective July 1, 2011, as well as the gainful employment regulations that will go into effect on July 1, 2012.  As with the previous complaint, the APSCU seeks injunctive and declaratory relief against the Department.    

I have only done a very quick read of the opinion, but I realized that today was a bad one for the proprietary schools after reading only its first few sentences, where the court wrote that “Uncle Sam” is entitled “to wield a heavy hand in regulating access” to funds for student loans and that the “Secretary wants to protect student applicants who might be film-flammed into signing up for worthless courses.”  With several exceptions, the decision pretty much goes downhill from there for the career colleges.  As the court also refused to enjoin the regulations pending an appeal, the misrepresentation and incentive compensation regulations are thus in place until a change in administration (assuming a new administration will want to tackle the issue) or a higher court reverses this element of the court’s decision (assuming the APSCU wishes to underwrite an appeal). 

One bright spot for the proprietary schools concerns the Department’s standing argument against APSCU, which the court rejected with a few sentences.  “Once published in final form, the new regulations affected APSCU members immediately, imposing an obligation upon them to re-orient their compensation programs and recruiting and marketing messages by July 1, 2011, as well as to inform and oversee outside contractors for whom the schools may now be liable for any misrepresentative statements . . . Further, distance education providers, such as online schools, must now ensure they are legally authorized in all States in which they provide student services, if those States so require.”  Pointing to the APSCU’s facial challenges of lack of statutory and constitutional authority, the court found them “fully ripe”.  

Another bright spot for the career colleges arises from the court’s decision to vacate the state authorization rule rather than remand it back to the Department for further consideration.  Although the court did not address many of the grounds asserted by the APSCU for challenging § 600.9(c), the court found that the Department failed to comply with the APA’s notice and comment requirements—a technical defect that the Department could have easily avoided.  Given the court’s rejection or deflection of APSCU’s substantive arguments under the Constitution and the Higher Education Act concerning the misrepresentative and incentive comp regs, it is quite likely that this rule would have survived the suit had the Department properly followed the APA.  The court appears to have a very high tolerance for the Department's wide-ranging interpretation of the HEA.    

This raises the question:  Will the Department begin the rulemaking process anew on this issue or call it a day?

Technically called the “Preliminary Plan for Retrospective Analysis of Existing Rules,” the Plan’s intent is “to facilitate the identification of regulations that warrant repeal or modification, or the strengthening, complementing, or modernizing of regulations, where necessary or appropriate.” That certainly covers the waterfront—everything from repealing regulations that do nothing more than repeat the statute, to policy changes (small or large) that would “strengthen[], complement[], or modernize[] . . .regulations” in the eyes of the beholder.  

The Plan points out how the Department “tightened” higher education regulatory requirements on state authorization and credit hours in response to an earlier internal review of regulations (p.5 of Plan).  Yet, the House Education and Workforce Committee saw differently, voting 27-11 (H.R. 2117.pdf) to repeal these same regulations noting their excessive prescriptiveness and lack of a strong basis in evidence.   

So, whether you’re an institution of higher education, school district, charter school, or other interested party, you’ll want to watch closely how the “Preliminary Plan” becomes a “Final Plan” in the coming months.  A link can be found on the Department’s web page for submission of comments.   

On the higher education side, the committee repealed the Department of Education’s final regulations on state authorization and credit hours, both of which drew strong opposition in the higher education community.  H.R. 2117.pdf, the “Protecting Academic Freedom in Higher Education Act,” was reported on June 15, 2011 by a vote of 27-11. Opposition to the regulations was based in large measure upon their fundamental altering of the federal government’s role in higher education, the lack of evidence for the regulations, and their excessive prescriptiveness.         

But it looks as though the Department may have missed a regulatory deadline relating to the December meeting.  34 C.F.R. § 602.34(d) requires that the Department publish at least thirty days prior to the NACIQI meeting a Federal Register notice inviting interested parties, including those who have filed written comments, to make oral presentations before the NACIQI.  The 602.34(d) notice is critical because it often, if not always, sets a deadline for making the request to present oral testimony, explains the mechanics for making the request, and includes other information helpful to the presenters. 

Interestingly, in its August 23, 2010, notice rescheduling the NACIQI hearing from September to December, the Department said that it would publish another notice asking for oral presentations:
 
[A] subsequent Federal Register notice will publish another meeting notice and invite individuals and groups to submit requests to make oral presentations before the NACIQI on the agencies proposed for review.
 
75 Fed. Reg. 51,758 (2010).  During today's teleconference meeting of the NACIQI, the Department staff indicated that the Department intended to publish the required notice in the next day or two.  But it is unfortunate that the Department has missed an important regulatory deadline for the first meeting in years of the NACIQI. 

Whether one is a for-profit or nonprofit college or university, hear how the Department's current proposed regulations could potentially lead to unintended consequences for higher education.