Tuesday, December 14, 2010

The Department of (Arbitrary) Education

by Jonathan Robe

A former Department of Education official once remarked that the Secretary of Education possesses essentially unlimited power to make and enforce rules with which colleges receiving federal funds must comply. I was reminded of this comment while perusing the Code of Federal Regulations (I've got to do something entertaining when I'm having difficulty falling to skeep at night). Anyway, I came across this gem in Title 34, Chapter VI of the Code (my emphasis):
§ 668.14 Program participation agreement.
(a)(1) An institution may participate in any Title IV, HEA program, other than the LEAP and NEISP programs, only if the institution enters into a written program participation agreement with the Secretary, on a form approved by the Secretary. A program participation agreement conditions the initial and continued participation of
an eligible institution in any Title IV, HEA program upon compliance with the provisions of this part, the individual program regulations, and any additional conditions specified in the program participation agreement that the Secretary requires the institution to meet.
Now if my reading of this section is correct (and based on the comment I mentioned above, I think that it is), it seems to be unduly granting overly broad and arbitrary power to the Secretary of Education such that, potentially, the Secretary can legally treat individual institutions quite differently in terms of the conditions to which each one must adhere. As we're seeing in the context of new or recently proposed rules such as gainful employment, that appears to be what is, and has been, happening.

1 comment:

Glen S. McGhee said...

PPAs need to be taken with a grain of salt.

I once asked a dept of ed official about the level of compliance with the drug abuse prevention program requirements for colleges in the PPAs, and she told me the community colleges did not comply.

PPAs also state that, as part of the agreement that allows schools to receive Title IV funds, the school agrees to follow all of the accrediting requirements. Ha!

While I am not a legal scholar, it is certainly plausible that PPA requirements inserted by the Secretary must conform with the powers and duties of the Department of Education Organization Act (1979), HEA, etc., as well as the intent of Congress: just look at how quickly Congress clipped the wings of Sec. Spellings when she tried to (merely) start a review of accreditation.

There is always a larger context, and a broader view, I have found, for these kinds of things.

BTW. Get a copy of the PPA for your favorite college (if they let you have it), and you will learn why most, if not all, of the False Claims Act suits (FCA or whistleblower's suits) against schools fail.