Archives: Regulations

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Concrete Results: The Reg Reform Effort at U.S. Department of Education

Late last week the Department of Education (“ED”) announced the release of the second report of its Regulatory Reform Task Force.  The report recommends ED withdraw nearly 600 antiquated guidance documents–a big step forward in cleaning-up its regulatory and guidance portfolio. Under Executive Order 13777, the Task Force continues to review ED’s regulations and sub-regulatory guidance as … Continue Reading

Supreme Court to Hear Gloucester County, VA Transgender Bathroom Case

Last week the Supreme Court announced it will review the G.G. v. Gloucester County School Board (VA) decision–a case dealing with who gets to use what bathroom in a local high school.  The Fourth Circuit Court of Appeals ruled 2-1 that for purposes of Title IX’s prohibition of sex discrimination, a student’s self-designated gender identity … Continue Reading

Department of Education in Hot Seat Defending Another Administrative Procedure Act Lawsuit

Apart from defending Title IX lawsuits in Texas, Nebraska, Illinois, and the District of Columbia based on its Dear Colleague Letters (transgender bathroom/locker room guidance and guidance announcing the preponderance of the evidence standard for campus sexual harassment and assault disciplinary proceedings), the U. S. Department of Education now is a defendant in a Title … Continue Reading

H.R. 4768, Separation of Powers Restoration Act of 2016, Passes House

On July 12, 2016, the House of Representatives passed H.R. 4768, the “Separation of Powers Restoration Act of 2016” by a vote of 240-171.  Short in length, the legislation amends the Administrative Procedure Act to overturn the Chevron and Auer doctrines of judicial deference to agency interpretations of statutory and regulatory provisions.  Reviewing courts would … Continue Reading

Oversight Hearing on Proposed ESSA Title I Regulations

On Thursday, July 14, 2016 at 10:00 AM, the Senate Health Education Labor and Pensions Committee will hear from education stakeholders about what they think about the proposed Title I regulations to Title I of the Elementary and Secondary Education Act, as amended by the Every Student Succeeds Act (ESSA), published earlier today (July 11) … Continue Reading

Borrower Defense to Repayment Regulations Now Publicly Available

Though the controversial borrower defense to repayment proposed regulations will not be officially published until Thursday, June 16, 2016, a copy (530 pages) has been placed on public display at the Office of the Federal Register.  Earlier today the U.S. Department of Education issued a press release announcing the regulations. Voluminous comments can be expected from the … Continue Reading

Association’s Draft Report Raises Questions about Due Process Under Title IX

Earlier today the American Association of University Professors (AAUP) released a draft report, The History, Uses, and Abuses of Title IX, raising questions about due process for the accused under Title IX of the Education Amendments of 1972.  While the draft report is much broader than a due process discussion, due process is one of the … Continue Reading

House Implementation Hearing on Every Student Succeeds Act

Earlier today the House Education and Workforce Committee’s Subcommittee on Early Childhood, Elementary, and Secondary Education held its first hearing (“Next Steps for K-12 Education:  Implementing the Promise to Restore State and Local Control”) on the recently-enacted Every Student Succeeds Act.  The Act reauthorized the Elementary and Secondary Education Act of 1965. It was my privilege … Continue Reading

Court of Appeals Holds Notice and Comment Rulemaking Required

In a 2-1 decision  announced on November 9, 2015, the U.S. Court of Appeals for the Fifth Circuit affirmed a Texas court’s injunction against executive actions of the Department of Homeland Security that had sought to give quasi-legal status and work permits to certain undocumented immigrants.  In so holding, the court noted the executive actions constituted, … Continue Reading

Committee to Examine Report on Higher Education Regulations

The Senate Health, Education, Labor and Pensions Committee will hold a hearing on the recently-released (Feb. 12, 2015) report of the Task Force on Federal Regulation of Higher Education, “Recalibrating Regulation of Colleges and Universities” on February 24, 2015 at 10:00 AM.  Two witnesses are on the agenda:  Dr. William E. Kirwan, Chancellor of the … Continue Reading

Perez v. Mortgage Bankers Association: Case to Watch For Notice and Comment Rulemaking by Federal Agencies

In a closing watched case that could implicate notice-and-comment rulemaking in all federal agencies, the Supreme Court heard oral argument last week in Perez v. Mortgage Bankers Association.  The legal question before the court— Whether a federal agency must engage in notice-and-comment rulemaking under the Administrative Procedures Act before it can significantly alter an interpretive … Continue Reading

New Gainful Employment Rule Challenged

In a lawsuit filed in federal court in the District of Columbia earlier today (Nov. 6, 2014), the Association of Private Sector Colleges and Universities (APSCU) argues the U.S. Department of Education’s recent final regulation (214 pages) on gainful employment is unlawful, arbitrary and capricious, outside the scope of authority of the Higher Education Act … Continue Reading

Coming Soon: New Changes to the Jeanne Clery Act

Last week the U.S. House of Representatives passed S.47, the Violence Against Women Reauthorization Act of 2013 (“Act”) after the bill cleared the Senate earlier in February. Given the Act will soon be signed into law, institutions of higher education should take note, if not already, of several significant amendments to the Jeanne Clery Act … Continue Reading

Administration Seeks to Use Federal Student Aid and Accreditation to Control Tuition and Student Outcomes

In its policy plan released after the State of the Union message, the Obama Administration intends to leverage federal student aid and the accreditation process to control the price of tuition and student outcomes in higher education.  The release–“The President’s Plan for a Strong Middle Class & Strong America“–consists of eight pages of bullet points … Continue Reading

Council for Christian Colleges and Universities Installs Lawyer as Sixth President

Earlier today the Council for Christian Colleges and Universities (CCCU) installed Edward O. Blews, Jr. as the sixth president of its association–an organization committed to advancing Christian higher education. The CCCU consists of 171 institutions around the world focusing on the arts and sciences.   Trained as a lawyer, Blews comes to the position with … Continue Reading

New Ventures in 2013: Changes at Talbert & Eitel, PLLC

To our friends and colleagues, Talbert & Eitel, PLLC brings news on the business and professional fronts in 2013.   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 … Continue Reading

NAICU Task Force: ED’s Administration of Financial Responsibility Regulations Found Wanting

In a recently-released report about the Department of Education’s administration of its financial responsibility regulations (the regulations–34 CFR Part 668, Subpart L–assess the financial stability of colleges and universities), a task force of the National Association of Independent Colleges and Universities (NAICU) found the Department failed to consistently follow its regs, failed to update its … Continue Reading

Court of Appeals Decides APSCU Legal Challenge

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 … Continue Reading

Executive Order Impacts Institutions Serving Active Duty Military and Veterans

In an April 27, 2012 ceremony at Fort Stewart, Georgia, President Obama signed an Executive Order (EO) that will impact institutions of higher education serving veterans and active duty military members.   Consisting of five sections (Policy, Principles of Excellence for Educational Institutions Serving Service Members, Implementation of the Principles of Excellence, Strengthening Enforcement and … Continue Reading

Final Rule on Student Health Insurance Posted

Late in the day on Friday, March 16, 2012, the U.S. Department of Health and Human Services (HHS) placed its final rule on student health insurance coverage on public display at the Office of the Federal Register. The rule will not appear in the Federal Register until March 21. Arising out of the Patient Protection and … Continue Reading

Higher Education State Authorization and Credit Hour Regulations Repealed

By a nearly three to one bipartisan margin of 303-114, the U.S. House of Representatives voted to repeal the Department of Education’s state authorization and credit hour regulations. The bill–the “Protecting Academic Freedom in Higher Education Act” (H.R. 2117)–is sponsored by Rep. Virginia Foxx (R-NC), the Chairwoman of the Subcommittee on Higher Education and Workforce … Continue Reading

CCCU, Religious Freedom, and the HHS Contraceptive Regulations

On February 16, 2012 at a hearing before the U.S. House Committee on Oversight and Government Reform, representatives of four member institutions of the Council for Christian Colleges and Universities (CCCU) expressed major concerns about the severe (and unprecedented) impact of the new Health and Human Services contraceptive mandate upon religious freedom. The four higher … Continue Reading