A recent commentary on The Hill (“Gainful Employment Rule Could Harm Law Schools“) touches on a point that again highlights the unfair and unsound approach of the Gainful Employment regulation, which is that it should require all programs from all colleges to comply with the regulations – not just those in the proprietary sector. Protecting students from onerous student debt and poor program outcomes should be a universal mandate of all higher education providers. If the Department of Education was to apply this Rule evenhandedly to all schools, it would show how irrational the metrics the Department is pushing truly are.

If all colleges and universities were beholden to GE compliance, almost all law schools in the country would likely fail. The metrics the Rule uses attempt to gauge a program’s success by measuring its graduates’ student loan debt compared to their income level as early as 18 months after graduation. This is an impractical approach, given that most careers are still in their infancy during that window; entry-level earnings are nowhere near the earnings levels that graduates achieve 5-10 years into their careers, let alone their full professional income potential based on their education. Very few lawyers have the luxury of starting their careers without significant student loan repayment obligations.

Yet, few would argue whether top tier schools such as Harvard Law School are providing “quality education and training to their students” to enable them “to pay back their student loan debts” (which is the GE Rule’s intent, as articulated by the Department in the final version of the regulation published on October 31 of last year). However, by the Department’s own metrics and terms, many of the programs at those schools would not pass GE. They would fail the rule and potentially face closure.

This clear disconnect is the focus of the aforementioned commentary in The Hill. Martha Walters Barnett, a former partner at law firm Holland & Knight who served as president of the American Bar Association, writes that if the GE Rule was applied to all law schools accredited by the American Bar Association (ABA), many “well-regarded private, non-profit law schools” would fail. Furthermore, she writes, “…the students who would be shut out or kicked out of law schools would be disproportionately from low-income families, including many from racial and ethnic minorities, as well as those opting for government and public service after graduation.”

But it’s not just law schools that would potentially be at risk if they were beholden to the GE Rule. One independent study found that as many as 54 percent of the degree programs at the Texas university system a system of publicly funded institutions – would fail the regulation if it were applied to them.

And therein lies the utter folly of the GE regulation – that, while the Department contends that it is intended to weed out the “bad actors” in the for-profit higher education sector, it actually punishes quality programs due to its flawed metrics. Just as strong performing, non-profit educational programs would fail the Rule, so too, would quality, for-profit educational programs – which, contrary to popular belief, do exist. In fact, as Ms. Barnett points out, it is these very schools that allow many low-income, minority students to receive an education that would otherwise be out of reach for them.

So, while we fully support the Department’s goal to rein in programs that saddle students with high levels of debt and poor job prospects, the GE Rule that they’ve devised to do so is not the fair, sensible, and unbiased approach required.

For further reading on this issue, please see here, here and here.

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