The Department of Education can’t even count

September 9, 2014 

The U.S. Department of Education doesn’t know for sure how many comments the public submitted to it nearly four months ago about the controversial “gainful employment” rule.

Experts say the “witch-hunt” like rule ought to be able to stand up to feedback from those affected by it, but while the public comment period closed May 27, the department still hasn’t “counted up an exact figure” of comments received.

The department is instead “spending our time having conversations and crafting a rule that will best serve students,” a spokesman from the department said on background in an email to
The gainful employment rule is a proposed regulation within the Higher Education Act of 1965. It would rescind federal funds from vocational programs and for-profit institutions if its graduates defaulted on their student loans more than 30 percent of the time.

Additionally, if the average student’s ratio of debt was more than 12 percent of their incomes, the school or program could also become ineligible for funding.

The department spokesman confirmed staff received “less than 100,000 comments this go-around.”
Advocates worry the department’s opaque treatment of these comments is not only a transparency issue, but a disservice to the rule-making process.

“The word ‘public comment’ means ‘public comment,’” said Richard Vedder, director of the Center for College Affordability and Productivity. “People have the right to know the intensity with which people are commenting on things.”

The Institute for Liberty submitted 10,000 comments to the department.

Releasing the number of comments would send  “a clear signal to Congress that there is tremendous public interest in these issues,” said Andrew Langer, president of the institute.

“If the public feels strongly enough about agency actions to send tens of thousands of letters, then perhaps it signals to Congress that they need to weigh in,” he said.

The Association of Private Sector Colleges and Universities stated that over 57,000 comments sector-wide were submitted to the department.

“We hope the department carefully reviews and considers the input and concerns of those impacted by the regulation,” said Noah Black, vice president of communications at APSCU. “To date, this is something that has been missing from the regulatory process.”

The proposed rule has become controversial because of the impact it would have on for-profit institutions.

Inside Higher Ed reported in March that roughly 8,000 academic programs enrolling 1 million students would be required to comply with the standards.

“Most will pass,” said Arne Duncan, the education secretary, according to Inside Higher Ed’s report. “Many programs, particularly those at for-profits, will not.”

Experts believe gainful employment regulations disproportionately impact for-profit schools.
“They’ve created a witch hunt against the for-profit institutions,” said Lindsey Burke, Will Skillman fellow at the Heritage Foundation. “If it was really about limiting default, then they would also be shining a bright light on community colleges as well because they have comparable default rates and (attract) similar students.”

The department’s previous history with gainful employment regulations sheds light on how they are handling the rule-making process now, Vetters said.

In 2012, a federal judge struck down a previous attempt to create a gainful employment standard because the loan repayment metrics were found to be arbitrary.

“They’ve been beaten up on this gainful employment issue before,” he said. “The department has been working for years on this issue and probably just wants to get through this public comment period.”

Contact Bre at, or follow her on Twitter @bre_payton. 

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