Arne Duncan Sued by Private College Association

Arne Duncan is being sued by the Association of Private Sector Colleges and Universities. Why is the association suing the Secretary of Education?

The Association of Private Sector Colleges and Universities (APSCU), on behalf of its more than 1,650 member institutions, today filed a lawsuit in the federal District Court in Washington, DC seeking to block the Department of Education's final “Gainful Employment” regulations. APSCU's complaint asserts that the regulations represent regulatory overreach, conflict with congressional intent, were developed through a flawed process, and implemented without adequately exploring the impact on minorities, women, and jobs.
"This lawsuit is necessary in order to protect 3.8 million students who attend private sector colleges and universities today and those who will attend our schools in the future,” said APSCU Interim President and CEO Brian Moran. “By issuing the Gainful Employment regulations, the Department of Education has clearly exceeded its statutory authority. The Department's overreach employs metrics that are at odds with those Congress enacted to determine Title IV eligibility. The Department has promulgated hundreds of pages of text to define two words. Adding complexity not clarity, the Department's unlawful regulations will hurt students and jobs, a consequence made still worse by a very uncertain economy. (emphasis added)

As you read from the link above, you can make the connections between the overreach of the DOE for these for-profit colleges and the mandates handed down to the states regarding public schools. ASPCU maintains Duncan doesn't have the constitutional authority to do what he is doing, it's all vague, and impossible to attain. Does that sound familiar?

Maybe it's time for the states to follow ASPCU's lead and sue the Department of Education regarding the mandates handed down by the DOE. If providing "gainful employment" is vague and unreachable and is a basis for a lawsuit, wouldn't you think the DOE goal of children being 100% proficient by 2014 set the stage for a lawsuit seeking relief from the impossible?

What will happen if the students don't reach this goal?

To make matters worse for states, the law calls for all schools to demonstrate 100 percent proficiency by 2014–or else face federally mandated sanctions. Secretary of Education Arne Duncan stirred controversy in March when he estimated that 80 percent of the nation’s schools would be labeled failing under the current law by fall 2011. While many agree this number is an exaggeration, it’s likely that most states will be identifying more than 30 percent or 40 percent of schools as “failing” to make Adequate Yearly Progress by 2013.

About a month ago, Duncan switched to “Plan B,” laying out a plan in which states could apply for waivers from the accountability requirements under NCLB in exchange for adopting a “basket of reforms.” The plan drew harsh criticism from those questioning the legality and prudence of such an option. A recent Congressional Research Service report about the proposal, for example, found, “Under such circumstances, a reviewing court could deem the conditional waiver to be arbitrary and capricious or in excess of the agency’s statutory authority.”

There is a theme running throughout the DOE on all levels of education: arbitrary, capricious or in access of the agency's statutory authority.

Has the time come for states to start pushing back on the DOE?

Duncan’s dilemma is twofold. First, he’s fighting a losing battle in the court of public opinion when it comes to NCLB and the role of Washington in school reform. In the most recent PDK/Gallup poll, nearly 50 percent of respondents said they held either an unfavorable or very unfavorable view of NCLB, while just 30 percent felt favorably towards NCLB. This is a marked shift since 2008, when the percentages of those favorable and unfavorable towards the law both hovered around 30 percent. When asked who should hold schools accountable for what students learn, state and local government were preferred to the feds by an overwhelming margin of 80-19. Considering that many of these leaders were elected to push back on the Washington establishment, it may very well be a political win for these leaders to turn their back on NCLB and replace it with a state-devised solution.

The state consortia need to regroup and instead of focusing on unconstitutional common core standards, they should focus on suing the DOE to regain state and local school control.