Seventeen states and the
District of Columbia have sued the U.S.
Department of Education, challenging the department’s lack of implementation of
the gainful employment rule. The Obama-era gainful employment rule allows the
federal government to terminate federal funding to institutions of higher
education where graduates end up with higher student loan debt than earnings
and provides a pathway for those same graduates to use the federal government’s
income-driven repayment plan.
More specifically, in order
to be eligible for federal funding under the Higher Education Act Title IV
student assistance programs, an educational program must lead to a degree at a
nonprofit or public institution or it must prepare students for “gainful
employment in a recognized occupation.” Therefore, with very few exceptions,
any nondegree program offered by nonprofit or public institutions and all
educational programs offered at for-profit institutions must lead to gainful
The complaint filed in the
U.S. District Court for the District of Columbia by the 18 attorneys general asks
the court to declare as unlawful the notices the
department issued earlier in the year that delay enforcement of key provisions
of the gainful employment rule. The complaint also asks the court to order the
department to enforce the gainful employment rule in its entirety, arguing that
the delay notices operate as an amendment to or a recision of the rule.
Additionally, the department
has released the 2017–18 schedule for its Negotiated
Rulemaking Committee Meetings on gainful employment.
These meetings are open to the public. The first committee meeting is slated
for Dec. 4–7, in Washington, D.C.
ADEA Advocacy and Government Relations staff will continue to
keep ADEA members abreast of any further litigation or regulatory efforts impacting
the gainful employment rule.
 Typically, the Department of
Education develops its proposed regulations without public input and then
publishes them in the Federal Register for comment by the public. The
published document is known as a Notice of Proposed Rulemaking (NPRM). Under
negotiated rulemaking, the Department of Education works to develop an NPRM in
collaboration with representatives of the parties who will be affected
significantly by the regulations. This is done through a series of meetings
during which these representatives, referred to as negotiators, work with the department
to come to consensus on the department’s proposed regulations. These meetings
are facilitated by a neutral third party.
The Department of Education is specifically
required by law to use negotiated rulemaking to develop NPRMs for programs
authorized under Title IV of the Higher Education Act of 1965, as amended
(Title IV programs), unless the Secretary determines that doing so is
impracticable, unnecessary or contrary to the public interest. The department
generally follows these same procedures when it uses negotiated rulemaking to
develop NPRMs for programs other than the Title IV programs.