yet one may fail while the other pass these different regulatory outcomes may be the product of graduates personal trauma surgeon family decisions personal financial circumstance stances or even local economic conditions all unrelated to the quality of training schools provide a program that provides excellent education at low cost one hundred percent graduation rate and one hundred percent placement rate and still fail congress never gave the department with or to curtail for eligibility through debt and earnings metrics that turn on factors outside schools control and for decades the department never claimed otherwise but even if congress had authorized th department condition programs eligibility on whether programs and even students repay their debts this regulation does not do that in a rational way key elements of the debt metrics such as the eight percent threshold repayment timelines are arbitrary and not supported by the right this is not as the department search in the district court evidently believed a case about default on student loans this rule does not address the falls let me a program has quote an occupational of jack well you know what are you are you that if circumstances changed and the department had new information or additional information that it couldn't change its position or elaborate further there are you know not but but two things first is a matter of statutory construction the fact that they historically have interpreted that way a rat that it's i weaseled operation now then if we if if you accept your playing meaning argument if you think there's some ambiguity here our gap then we're in a different response your question out of the a p a of course they can change their mind of course they can but they have to know that they're changing their mind they have to say they are that's the teaching of actually see versus fox mynheer they don't even admit that they did change their about growing concern that it's seeking to address in this rulemaking that's right roger fighting they never addressed their prior position that they had interpreted providing quality education that enables its graduates to obtain gainful employment is there no implication that ga employment is tie to the notion that this is not a grant program but on loan program you know your honor i don't think that's what the words congress tros say i don't think that's as they say the in the statutory interpretation where where would you point to with their previous interpretation of gainful employment why are we cited a number of those cases one of those when i mention the some of our own morris case which one is that it is a case involving a program of education primarily directed at jewish students yes well so i read that case and that's a seems like an easy case that is one where they were not preparing them for any kind of job at all that doesn't mean and the government's position is that's a threshold well at least you must prepare for an occupation and if you don't then we don't need to go to the next question in that case so that doesn't necessarily resolve this where you are with respect the similar or worse case is a case where they are whole the program is saying it doesn't train for gainful employment and the test they apply is we look at it in a very commonsense way is the course of a i think it is conceded by the department that the tests turn on factors the schools cannot control the debts threshold here this eight percent threshold that they bring  it's from a different context it's from the mortgage context it's also the case that it is they've simply the ratio of a percent at a level that their own statistics show was to love so for example there's a education department study and you can use a five forty eight that says that the department know that thirteen percent of the graduates for fourth of pro profit schools and sixteen percent of graduates of private nonprofit schools who are are rationally short time lines we already talked about the f c c versus fox the issue let me also keeping our eye on the clock here turn to the third issue we have raised which has to do with the reporting requirement department is not denying that the requirement that schools report student a specific person identified a formation private loan data violates ten fifteen c's prohibition on maintaining a database of such information indeed significant congress in ten fifteen c made a choice to protect student privacy and they did it in response to an earlier effort by the part of education to create such a database in wish that apartment basically said ok we agree there has to be an interpretation of that grandfather exception such that the exception doesn't swallow the rule as court said and ask you to so the the limitation that they themselves adopted says that it has been you information has to fit within the purpose of the existing database and the department simply hasn't demonstrated here that the private phone data fits within the overall purpose of the data system it is never included problem data in the system before they make an argument based on ten ninety two b b three but the language of that regulation shows that is limited to research and this is obviously not research this is a punitive rule and so that apartment is seeking to do here what congress forbit they're going to collect individual data that the existing database collected only in the institutional level so the shifting the focus from the institution to the individual card which has said no we want to protect privacy i was or the maker of my i'm right though that there are no individuals who are being added to the database and this program writes to say it's already it's individuals who are already in the database when order is as time goes forward individuals who participate in the program in the future will be added but usually they would be added anyway if they got federal loans but they additional information will be included about that right so it's additional information about them namely their private loans but that's not additional people which is the difference between this one and the other just credit but it's also the case that the that the database focuses right now on institutional level statistics not individual that  the court many of his joshua wall than i'm here from the department of justice representing affably the united states department of education the department has reasonably construed the gainful employment statute to require programs provide quality education and training to their students that lead to earnings that allow them to pay back their student loans that understanding is consistent with the ordinary meaning of the terms with the purpose in the context of the statute its legislative history is courts prior statement in the last case involving these parties and the conclusions of three different district courts including the one that address the issue below the department's debt to earnings and get discretion get to discretionary income ratios are also rational ways of determining whether students are earning sufficient money to pay back their student loans they come from numerous studies experts and commonly adopted industry standards the department examined the very same claims made in this case that the ratio was inadvertently measure things like demographics or economic trends or student choices and found that the evidence just did not support those claims that they were unduly or irrationally skew the outcomes instead the regulation has numerous features that are designed to counter and mitigate precisely those issues by using mean and median figures by using numerous graduation years by having a flexible transition period a limited definition of debt failing grades with built in tolerance levels and numerous years before a program would ever be eligible apartment reasonably assured that it's ratios would in fact measure whether students are prepared for grading the informant rather than factors beyond its control  response to the two schools argument that if you apply the rule you have to have an extreme case in other words if counsel began talking about them to schools many schools etc that the one that they mention that's your response you know it's a facial challenge their burden is much higher we're just trying to understand how the rule would work in practice right seem to be that was a helpful example well it's an example that i think posits the answer to its own problem which is it posits and assumes that they're all training in exactly the same way and therefore the reason for the different result must be something else  so they're already assuming the answer to the question the fact is that the department examine precisely these things for example they say if two schools are coming to different results it's because for example that one of them has a disproportionately not a high number of low income students and so it's really demographics now the department looked at exactly this question and it did a regression analysis in its rulemaking controlling for low income students and it's  no evidence to support the fact that having a higher number of low income students disproportionately affects the result in fact low income students are distributed in roughly equal proportion in programs that were expected to fail ha zone so they looked at this question with the aid here requires is a cogent explanation of why the agency exercise its discretion in that way it's based on a rational examination of the fact that's exactly what they did with respect to student demographics and they did the same thing with respect to whether people are going to fields that are traditionally lower paying jobs and all these other factors that they point to and just to take a few other examples of what can happen one of the complaints was well some students are going into the military and they get paid at last so they can afford to pay back their loans and as we pointed out in our response where you were if you get a military deferment the rule excludes you and the response w will students are borrowing more because they're spending all their money on fancy cars and clothes and not wisely managing their money then you should provide some financial counseling to your students if you're trading them in excellent ways and they still don't find jobs that can pay them loans back maybe you ought to be doing better job placement or career counseling which is part of what these programs i think ought to be doing to prepare their students so this is not a question of these are things beyond the school's control and of course remember the largest factor here which is student debt is very much within the school's control because jazz defined only by things schools control their tuition and expenses and books and supplies and things like that doesn't include housing exactly what the department did each and every turn in its ruling which is why it's not arbitrary either racially and frankly i would find it hard to imagine a case where that would be so as applied as for the statutory interpretation i think you have to look as you as this court frequently does at the purpose of context and not simply at the words in isolation although i think the words in isolation still support the department's position but the purpose here is congress lending billions of dollars a year and it expects these loans to be paid back because otherwise the cost is borne by the federal taxpayers so the concern here is not just th season it's get training to prepare if you have any job getting any amount which would hardly require post secondary education in the first place but enough to pay back their loads which is exactly what these court said in the last opinion it is involving exactly the same parties it's said that these this is the direct quote these requirements seeking are the ones in title for eligibility are intended to ensure that participating schools actually students are making an investment in their future and they're not doing it so they can get any paying job getting a mount everyone knows why students are going to school to improve their job prospects and they need to be able to pay back their loans and then live afterwards so it's important that they prove and make enough money to pay those loans back and have a living and not just get any minimum wage job which is now my professors hold up a school where just in a period of time ninety percent of the students graduates decide to go to the peace corps or something comparable that's simply going to be a school that is not going to qualify for time for grants no i don't think that you can assume that because remember this is all about the ratio between earnings and and and debt so what you would hope that would happen in a school like that is that they would make reasonable  peace corps example but one of the examples that the department did explicitly look at were teachers and nurses and other jobs that were traditionally low paying and they said many of these programs are over ninety percent i think was that was the figure we're expected to pass because time so the agency was not at all looking at this question of could this actually be interpreted in this way i think what the department would what the those cases represent at most is a view of number one if you were training them for any type of job then you were passing the statue no matter what but there's nothing reflected in there that said you couldn't when we read training for a job that pays any amount as the maximum of what congress permitted under the statute in other words there was no question of could be agency elaborate further and this additional requirement is the never took a position that said the most depaul that we can ever do is ask whether you get any paying job in any amount but love all sort of in the department for those decisions made that they were administrative adjudications and can somebody appeal from that to the secretary i don't know but they certainly do certainly didn't disha review and i think it's also important that first the agency doesn't view itself is changing its position as opposed to adding a new and additional requirement that never existed before these very same cases were raising comments of the rule making and were discussed in the agency rule making and we said we don't understand how these two have taken a position that says we can't add these requirements so we don't view ourselves as changing our position but then this judge rogers pointed out even if this  they said a lot of these students an alarming number are not able to earn enough to pay back their debt this is a new and growing problem and they had a reason the first drop in this rule now the department didn't think that it was a change at all because they had never addressed the question shouldn't coolidge when the statute permit this type of required so rather than being a change it's just simply a new rule like any other you just didn't exist before and you want to censor was a new and growing problem as of well  don't recall the exact date but they were looking at relatively recent data leading up to first it was to the rule that was set aside a number of years ago so i think they began examining this problem around about two thousand and eight he doesn't know it was far after these  and before the two thousand and eleven you know leading up to it and then they reexamined a problem again in the next round of work of well making it down down similar data supporting the reasons for that for making this rule making and if in the few minutes remaining i would just that address the reporting requirement very briefly all that the statute actually says and we're speaking of tend to teen c is that there's a there's a prohibition but then there's an exception for information that's necessary for the operation of a title for a program which the collection of this data is and was in use before two thousand and eight which the system that we're talking about was and there's no dispute about that  carlin pointed out before even if you accepted some sort of statutory interpretation that required a limitation of some kind of what new data you could add this is soley data for students who are receiving title for loads this is very different from the last move making where they looked for a loan data from all students and we accepted that limitation that the district court imposed we narrowed our rule making in direct response to it and limited only to people who are receiving title for loans and of course it's necessary to do that because if you want to figure out whether someone's going to pay back to her for loans it's important to know what other loans they have to pay back as well so we do think that is necessary and we think it's well within the purpose of the system which when authorized by congress explicitly said that it can  that's not going to be reported but then the last point i would make and my final seconds is that if the regulation explicitly says that it's separate the portions of it are several both from each other so if for some reason you found this reporting requirement permissible you could easily separate from the regulation and the reporting and the rule making would go on as usual it's just that private loans would be reported to zero which would only read down to the benefit of schools because the ratios would be more favorable to the school in those instances that it would be otherwise but it's not limited to education loans it's limited to look loans are defined in the regulation as the tuition and books and supplies and things like that no what i mean they go to the items that are specified in the regulation she will know if i don't understand how that works just walk me through it if you will i graduate right one hundred thousand dollars in student loan then the only thing that's to be recorded is if i borrow money to pay back that hundred thousand dollars well i think the way it works is normally when you're in school and you're receiving that it's just restricted to title for loans for the for the moment and you're receiving your title for a lot of charity and i think it's made out to you and to the program and you both cosign it and it gets deposited and some portion of that goes to tuition and all those other expenses that type of thing is recorded but if you a student and you decide you want to buy a car separately or a house and you get a mortgage that's not part of the system your debt for them maybe i misunderstand your question type well i thought one of the metrics was trying to  evaluate oh whether i was using my education in inappropriate ways so i could pay back this loan and one of the things that was of interest is you know am i incurring all kinds of other financial obligations of that are making it difficult if not impossible for me to repay my loan right i think i understand your question now and this is part of the eight percent in the twelve  assumes that if you're going to have other private other loans and other debt like buying a house and buying a car and other things and then really the eight percent is sent where it is precisely because they recognize that it's a hole in your life you're likely to buy a car buy a house and buy a car and you need other money so for example one of the common underwriting standards is that you want about forty no more than forty percent i think is the number of your income and around thirty percent is usually attributed to housing and so that leaves about ten twelve percent for other dad and eight percent is usually the figure that these underwriter say is what's appropriate when it comes to your student loans which is where that number comes from but that number assumes that student debt is not going to be the only debt in your life but there's room left in these underwriting standards for other debt in your life right now but in terms of recording it in the system they want to make gets into the system is your  for school and any private loans like from a bank or going to school that's correct and the understanding is it's slightly even narrower with the with the rule actually uses only that portion of what you borrow they go situation and other things if you borrow some portion of it for housing or food that's not counting under the regulation there are no further questions i asked the court to affirm thank you and when you actually look at the way the rule works they don't work to mitigate let's take something that even the departed that is outside of schools control recessions they say well we've made it good for that because you've got four years but that isn't so that those types of the warnings can be a death sentence a c i c yes not a school but creditor recognized by the department says there is a death sentence that apartment says in the room it programs raise maybe a typical in any given year that means they can be a fluke and if in a given year there were flu you then have to give the warning it's a death sentence even the department says that slight statistical imprecision can lead to mis characterizing the program as zero or feeling which precipitate substantial negative consequences that's it sixty four nine forty six so it's i don't think it is rational in terms of the debate we've been hater i don't know what period those are but you're right there one of the institutional level right that's where congress put it right but that could have the same problem if you know there's a ticket there's a four year recession there could be a lot of the false institution could of would have to give warnings or whatever it is it has to give as a consequence of the false congress seems to assume that there is a problem otherwise you can't go to control this at all when your own are several things for starters it's in that case congress has spoken their argument about severing your order they they say what we in several hears it helps the schools with the significance of the several here is they would be taking out of the mix eighty data element and they would be randomizing results it would be changing the rule that they adopted it would be undercutting the purposes they say they want to serve so it would be even more rational thank you because i would take the matter