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New Cases and Developments

NACUA's Legal Resources staff summarizes current higher education cases and developments and provides the full text of selected cases to members. New cases and developments are archived here for up to 12 months.  Cases provided by Fastcase, Inc.

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Government Relations; Authorizations & Regulations

Department of Education Announcement Regarding an Open Meeting of the HBCU Capital Financing Advisory Board (Nov. 15, 2017)

Announcement issued by the U.S. Department of Education providing notice of an open meeting of the Historically Black Colleges and Universities (HBCU) Capital Financing Advisory Board (Board) to provide advice to the Secretary as to the capital needs of HBCUs and the implementation of construction financing through the HBCU Capital Financing Program. Interested parties are invited to provide public comment regarding the Board’s work and the Capital Financing Program on Saturday, December 2, 2017. 

11/16/2017
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Financial Aid; Students; Government Relations; Authorizations & Regulations

Notice of Proposed Rulemaking by the U.S. Department of Education to Delay Final Regulations Affecting Student Loan Programs (Oct. 24, 2017)

Notice of Proposed Rulemaking by the Department of Education to delay until July 1, 2019, the effective date of selected provisions of final regulations under the Student Assistance General Provisions, Federal Perkins Loan Program, Federal Family Education Loan Program, William D. Ford Federal Direct Loan Program, and Teacher Education Assistance for College and Higher Education Grant Program. The Department will continue to process borrower defense claims under existing regulations during the delay and borrowers may continue to apply for the discharge of their loans under these programs. Interested parties are invited to comment on or before November 24, 2017.

10/25/2017
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Financial Aid; Students; Government Relations; Authorizations & Regulations

Interim Final Rule by the U.S. Department of Education Delaying Selected Provisions of Final Regulations Affecting Student Loan Programs (Oct. 24, 2017)

Interim Final Rule published by the U.S. Department of Education delaying the effective date of final regulations of various student loan programs to July 1, 2018. The selected regulations originally had an effective date of July 1, 2017, and concern the Department’s standard and process for adjudicating borrower defense claims, requirements relating to financial responsibility standards, provisions that require institutions to provide warnings about their students’ loan repayment rates, and prohibitions against institutions’ use of arbitration or class action waivers in their agreements with students. The Department cited the pending litigation, California Association of Private Postsecondary Schools v. DeVos, among other reasons, for delaying the effective date of the selected regulations. The Department invites interested parties to comment on or before November 24, 2017.

10/25/2017
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Financial Aid; Students; Government Relations; Authorizations & Regulations

Federal Student Aid Dear Colleague Letter on the Wind-down of the Federal Perkins Loan Program (Oct. 6, 2017)

Dear Colleague Letter issued by the U.S. Department of Education’s Office of Postsecondary Education providing additional information on the wind-down process outlined in the Perkins Loan Program Extension Act of 2015. The Letter discusses the expiration of authority for making new Federal Perkins Loans for graduate and undergraduate students, the process by which participating institutions are to either return or distribute the assets of institutions’ Federal Perkins Loan Revolving Fund, and the option of assigning both non-defaulted and defaulted Perkins Loans to the U.S. Department of Education. Individuals with questions about the Letter should contact the department by email, or contact (877) 801-7168 for campus-based questions. 

10/24/2017
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Authorizations & Regulations

Non-regulatory Guidance on Flexibility and Waivers for Grantees and Program Participants Impacted by Federally Declared Disasters

Non-regulatory guidance issued by the U.S. Department of Education outlining waivers and other forms of relief from certain Federal requirements for grantees and program participants recovering from federally declared disasters. Specific to postsecondary institutions, the guidance discusses what institutions should do about disruptions in the delivery of educational services, the inability to administer student assistance programs under Title IV, incoming students’ inability to complete high school graduation requirements due to extended closures caused by a disaster, accreditation uncertainties, and delays in FSA program applications for recertification. Interested parties with requests for assistance beyond the scope of the guidance document are encouraged to contact the Department. 

9/26/2017
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Authorizations & Regulations

Report by the U.S. Government Accountability Office on the Department of Education’s Monitoring of Schools Financial Condition

Report published by the U.S. Government Accountability Office (GAO) urging the Department of Education to improve the metric used to identify and manage postsecondary schools at risk of closure. In particular, the report examines three aspects of the monitoring process: (1) how the Department oversees the financial condition of schools; (2) the efficacy of the Department’s identification of schools at risk of closure; and (3) communication among the Department, schools, and the public about financial monitoring. The report notes that assessment of the financial condition of postsecondary schools is presently limited because the current metric fails to reflect current accounting practices, does not incorporate new financial metrics that would provide a broader indication of schools’ financial health, and allows some schools to take advantage of a feature of the calculation that would inflate their scores.
9/22/2017
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Government Relations; Authorizations & Regulations

Announcement of the Withdrawal of Memorandums of Understanding Between the CFPB and the U.S. Department of Education Related to Information Sharing, Supervision and Oversight Cooperation

Announcement issued by the U.S. Department of Education providing notice of intent to terminate a series of Memoranda of Understanding (MOUs) between the agency and the Consumer Financial Protection Bureau (CFPB). The related MOUs aimed to increase the efficiency of identifying and processing claims of student loan fraud by sharing information between the two agencies. The Department of Education cited instances of self-directed CFPB processing of Title IV federal student loan complaints, rather than channeling complaints to the Department of Education within the agreed upon ten days as outlined in the MOUs, and the Department’s full oversight responsibility for federal student loans, as reasons for its notice of intent to terminate the MOUs. 

9/5/2017
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Religious Discrimination; Accreditation; Discrimination, Accommodation, & Diversity; Authorizations & Regulations

Illinois Bible Colleges Association v. Lindsay Anderson (7th Cir. 2017)

Opinion and Order affirming the district court’s dismissal of Plaintiffs’ suit. Plaintiffs—two associations representing Bible Colleges, a group of Bible Colleges, and a college student attending a Bible College—alleged that the statutory accreditation requirements enforced by the Illinois Board of Higher Education (Board) violated their rights under the Establishment Clause, Free Exercise Clause, Equal Protection Clause, their right to free speech and association, and state law. Applying the Lemon test, the court found that the State’s accreditation standards did not violate the Establishment Clause because they were broadly applicable to all post-secondary institutions and furthered a secular state interest in maintaining standards for these institutions.  Plaintiff’s “as-applied” challenge failed because Plaintiffs never applied for certification, and thus the Court could not determine whether the accreditation statutes were applied in an unconstitutional manner. The court further found that the statutes were not religiously motivated in violation of the Free Exercise Clause because they target both religious and non-religious institutions. The court affirmed dismissal of Plaintiff’s remaining constitutional and state law claims. 

9/1/2017
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