Blog: No Surprise The Department Of Education Can’t Answer Questions On Gainful Employment Rule

By Kevin Kuzma, Editor

“Oh, Virginia … don’t be so surprised. You know this is the way it works in Washington. Committees are formed, directives are given, decisions are made – and then, when questioned, no one can really explain what the impact is going to be. That’s just how it goes. The point is a committee was formed. We have serious business to address … regardless of how it impacts people.”

As smug as those words about the inner-workings of Washington might sound, it was not beyond reason to imagine a Department of Education representative speaking them to Rep. Virginia Foxx of North Carolina earlier this week at the department’s negotiated rulemaking committee’s second round of discussions about its “gainful employment” rule.

While it’s nothing new for leaders in our nation’s capital to pretend not to know the impact of decisions they’ve personally been involved in – think the government shutdown and Obamacare – it’s something else for a committee tasked with redrafting a rule that will impact so many not to know how to respond to basic questions.

  • How many programs would pass or fail under the latest proposal?
  • How can we move forward as a committee without the answer to that question?
  • When will the information be available? Soon? How soon?

The answers seem simple enough, and yet the department couldn’t provide any real numbers to the deliberators who need them most.

Rep. Foxx, a Republican and opponent of the rule in the past, sat in on a morning’s worth of the rulemaking committee’s deliberations. Comprised of 28 negotiators, 14 primary and 14 alternates, the committee represents a number of constituencies — and none of them seem willing to come to any consensus on how the final rule should be drafted. The group has been drastically divided on the subject of whether or not a rule of this kind is even possible to install since its first meeting in Washington in September.

This time around, the draft of the rule before them would fail programs much faster (with one possibility being the immediate loss of eligibility) and easier. The current version now includes stipulations that would almost instantly take down programs that can’t provide gainful employment for lacking adequate approvals and accreditations. And in perhaps the department’s most unexpected move, this draft also includes penalties that would do more than revoke federal student aid. Failing programs might also be called on to pick up the tab on some outstanding loan dollars even before students bail out.

After about 90 minutes in the audience, Foxx left, expressing her frustration at the committee’s inability to answer questions about how its baby would affect hundreds of colleges and, in turn, thousands of students. She reportedly said on departure, “One of the things that I’m interested in is that the department is so ill-prepared in terms of answering questions.”

Foxx had listened to the committee’s career college representatives question the department about its reasoning for introducing a more stringent proposal than what was offered in the initial draft. The lack of information about how many colleges it impacts obviously proved to be a major sticking point.

The disappointment is widespread. The higher education community probably expected the Association of Private Sector Colleges and Universities (APSCU) to condemn the final rule, in whatever form it takes, but it’s quite another thing for APSCU to be forced to shoot down the rule because no one – including the committee – can explain what a toll it might take.

APSCU's official press release on this week's sessions condemns the department for making "bad public policy." Here’s APSCU President and CEO Steve Gunderson's comments in the release suggesting a different body handle this matter:

“If the Department continues with the current flawed regulation, they will deny millions of students access to postsecondary education, new skills, and good jobs. This will hamper the ability of our country to meet the President’s goal of closing the skills gap by increasing the number of Americans with postsecondary credentials – leaving employers without access to the skilled workforce they require.

“Student outcomes, program quality, eligibility, accountability and transparency are matters for Congress and the reauthorization of the Higher Education Act, a view that is supported by the higher education community.”

The department is going to a great deal of trouble just to run through the motions on this rule. Career college sector leaders have rightfully suggested all along that if the department cannot find consensus even among schools the rule would not impact, that means the rule is fundamentally flawed. But now it seems clear they are intent on pushing forward a rule even more stringent than before. And why not? What’s stopping them? No one is going to be willing to stand behind the work of this committee when its time runs out. This committee clearly exists for the sole purpose of existing.


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