Streamlining and Simplifying Federal Student Aid

Earlier today (March 21), the Subcommittee on Higher Education and Workforce Development of the House Committee on Education and the Workforce hosted a hearing focused upon streamlining and simplifying federal student aid.  The subcommittee heard from a Vice Provost, a financial aid administrator, an education policy expert, and a representative of a think tank.  More information including witness statements can be found here.  In recent Congresses, simplification has been oft mentioned (and continuing) as a key issue in the reauthorization of the Higher Education Act.

 

Argument Set For March 28, 2017 in Transgender Bathroom Case

Oral argument in Gloucester County School Board v. G.G., No. 16-273,  will occur on Tuesday, March 28, 2017 at 10:00 AM in the U.S. Supreme Court.

The Court will hear from counsel on two issues:  (1) If [the doctrine of Auer deference] is retained, should deference extend to an unpublished agency [U.S. Department of Education] letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought? (2) With or without deference to the agency, should the Department’s specific interpretation of Title IX and 34 C.F.R. 106.33 be given effect?

Key Education-Related Hearings In Federal Court the Week of January 30, 2017

The hearing on a preliminary injunction sought by the Accrediting Council for Independent Colleges and Schools (“ACICS”) in ACICS v. U.S. Department of Education et al., Civil Action No. 1:16-cv-02448 (termination of recognition of accreditor for purposes of Title IV student aid) is set for Wednesday, February 1, 2017 at 9:30 AM at the E. Barrett Prettyman U.S. Courthouse, District of Columbia. Earlier, ACICS’s petition for a Temporary Restraining Order was denied on December 21.  More recently on January 24, the Commonwealth of MA, the States of IL, ME, and NY, the District of Columbia, and the Attorney General of Maryland filed a Motion to Intervene in the case.

The U.S. Court of Appeals for the D.C. Circuit will hear the appeal of the Consumer Financial Protection Bureau (“CFPB”) in CFPB v. Accrediting Council for Independent Colleges and Schools, No. 16-5174 (jurisdiction/authority of CFPB in accreditation) on Thursday, February 2, 2017 at 9:30 AM at the E. Barrett Prettyman U.S. Courthouse, District of Columbia.

In Gloucester County School Board v. G.G., No. 16-273 (Title IX bathroom access)–on the docket to be heard this term by the Supreme Court–the respondent G.G.’s merits brief is due February 23, 2017.  The petitioner school board filed its brief on January 3, 2017.  A large number of amici have filed briefs.  More are expected.

Education Hearings the Week of January 30, 2017 in Congress

A vote on the nomination of Betsy DeVos to serve as Secretary of Education of the U.S. Department of Education is set for executive session of the Senate Committee on Health Education Labor and Pensions on Tuesday, January 31, 2017 at 10:00 AM, Room 430 Dirksen Senate Office Building.

The Subcommittee on Early Childhood, Elementary, and Secondary Education of the U.S. House Committee on Education and the Workforce will hold a hearing titled “Helping Students Succeed Through the Power of School Choice” on Thursday, February 2, 2017 at 10:00 AM in Room 2175 of the Rayburn House Office Building.  Witnesses not yet announced.

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 is determinative of the choice of bathroom, not biological sex.

The court granted review of two questions:  (1) If [the doctrine of Auer deference] is retained, should deference extend to an unpublished agency [U.S. Department of Education] letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought? (2) With or without deference to the agency, should the Department’s specific interpretation of Title IX and 34 C.F.R. 106.33 be given effect?

Both school districts and the higher ed sector deserve a clear, unequivocal answer from the court on what the word “sex” does and does not mean for purposes of Title IX analysis.

Meanwhile on other matters, stay tuned in coming days for a multi-part series on the Department’s new, broad-sweeping borrower defense (to repayment of student loans) regulations.

An Unfortunate Commentary on Charter Schools

As the editorial boards of the New York Times, Washington Post, and Wall Street Journal have ably pointed out, the anti-charter resolution adopted this past weekend by the National Association for the Advancement of Colored People represents an unfortunate commentary for inner city communities longing for better schools.  Why put up the roadblocks?  Why stifle innovation? Why limit the rights of parents to choose what’s best for their children?  No compelling reason exists. To the contrary, over 40 states and the District of Columbia have endorsed charter schools through their state authorization laws. Stunting the progress of charters–as the resolution would do–represents a poor policy choice.

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 IV student aid-related lawsuit.  As with the Title IX litigation, the Title IV-related suit (filed in Utah) by the Center for Excellence in Higher Education contends the Department failed to follow the Administrative Procedure Act (APA)–that the Department acted arbitrarily and capriciously in failing to recognize the Center’s non-profit status for purposes of participation in Title IV federal student aid.

How these cases get resolved remains an open question, though at least two courts (TX and NC)) have given hints on how they view Title IX.  What is clear is the requirements of the APA (notice and comment rulemaking and arbitrary and capricious provisions) have finally arrived center stage in Title IX and Title IV litigation.

 

Preliminary Injunction Halts Obama Administration’s Transgender Bathroom/Locker Room Policy

On Sunday, August 21, 2016, a federal court in the northern district of Texas issued a nationwide preliminary injunction halting the Obama Administration’s highly controversial transgender bathroom/locker room guidance first-announced in the spring of this year.  The court’s decision is here. Significantly, the decision stated the U.S. Department of Education failed to follow Notice and Comment rule-making procedures under the Administrative Procedure Act, a major point of contention with many in the education community.

Oklahoma Wesleyan University Joins Lawsuit Challenging Title IX Sexual Assault Guidance

Yesterday, Oklahoma Wesleyan University joined pending litigation in the District of Columbia–now titled John Doe and Oklahoma Wesleyan University v. Catherine H. Lhamon, et al., 1:16-cv-01158-RC–challenging the U.S. Department of Education’s controversial Title IX Sexual Misconduct Guidance issued on April 4, 2011 in a Dear Colleague Letter.  Plaintiffs contend the Department’s Office for Civil Rights violated the Administrative Procedure Act by failing to follow the Act’s Notice and Comment rule making requirements for the “preponderance of the evidence” standard announced in the Dear Colleague.

Supreme Court Stays Fourth Circuit Transgender Case

Yesterday (August 3), the Supreme Court voted 5-3 to stay the decision of the U.S. Court of Appeals for the Fourth Circuit in G. G. v. Gloucester County (VA) School Board, No. 15-2056, wherein the Court of Appeals ruled that under Title IX of the Education Amendments of 1972 the school district must allow a transgender student to use the bathroom facilities of the student’s gender identity (in this case a female who identified as a male).  The Supreme Court also stayed the trial court’s preliminary injunction issued upon remand.

The stays remain in effect until such time as the Supreme Court makes a determination on a petition for certiorari likely to be filed by the district in coming weeks.

Meanwhile, in at least three jurisdictions the legality of the U.S. Department of Education’s related Title IX transgender guidance is under challenge in federal court–Students and Parents for Privacy, et al. v. United States Department of Education, et al., No. 1:16:cv-04945, Northern District of Illinois, Eastern Division; State of Texas et al. v. United States Department of Education, et al., No. 7:16-cv-00054, Northern District of Texas, Wichita Falls Division; State of Nebraska, et al. v. United States Department of Education, et al., No. 4:16-cv-03117, District of Nebraska.

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