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U.S. Department of Education Appeals State Authorization Ruling

Yesterday, September 8, the U.S. Department of Education notified the federal district court in Washington, D.C., that it plans to appeal the court's ruling overturning the portion of the department's Title IV "program integrity" regulations that extended its state authorization requirements to distance learning. The core text of the notice is provided below:

DEFENDANTS’ NOTICE OF APPEAL

NOTICE IS HEREBY GIVEN that Defendants Arne Duncan, in his official capacity as

Secretary of the Department of Education, and the Department of Education hereby appeal to the United States Court of Appeals for the District of Columbia Circuit from the portions of this

Court’s Order and this Court’s Memorandum Opinion entered on July 12, 2011 (Docket Nos. 28, 29), which granted in part Plaintiff’s motion for summary judgment, denied in part Defendants’ motion to dismiss, or in the alternative, motion for summary judgment, and vacated 34 C.F.R. §600.9(c) (2011).

This is not an unanticipated event--as previously noted, this was the only part of the program integrity regulations overturned by the district court, and the court's ruling was made on process grounds, not the substance of the regulations. (I.e., the district court ruled that the department had not followed the appropriate process for gaining public input on extending the state authorization regulations to distance learning before issuing them; it did not indicate that the regulations themselves were in some way inappropriate or deficient.)

We’ll have to see if the appeals court accepts the case and, if so, when a three-judge appeals panel is appointed to hear the case. If the panel rules that the district court decision should stand, then the department will have to go back to the drawing board on applying state authorization requirements to distance learning as a condition for Title IV funding. Should the appeals panel ultimately reverse the district court decision, though, and reinstate the state authorization extension to distance learning, the plaintiff, the Association of Private Sector Colleges and Universities (APSCU), will almost certainly appeal the panel’s decision to the full appeals court. In that case, we could see this issue play out in the courts for quite some time.

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