1015 15th St. NW, Suite 600 

Washington, DC 20005 

www.defendstudents.org 

July 31, 2019 

VIA ELECTRONIC MAIL 

Director, Information Collection Clearance Division 

Office of the Chief Privacy Officer 

Office of Management 

U.S. Department of Education 

400 Maryland Avenue S.W. 

LBJ, Mailstop L-OM-2-2E319 

Washington, D.C. 20202 

OMInformationQualityAppeal@ed.gov 

Chief Information Officer 

U.S. Department of Education 

550 12th Street S.W. 

PCP, Room 9112 

Washington, D.C. 20202 

OFOInformationQualityAppeal@ed.gov 

Re: Information Quality Request Appeal 

To whom it may concern: 

This is an Appeal of the U.S. Department of Education’s (the “Department”) response to the National 

Student Legal Defense Network’s (“Student Defense”) Petition for Correction and Disclosure 

(“Petition”)—submitted on September 5, 2018—in accordance with the Information Quality Act (“IQA”), 

the Office of Management and Budget’s (“OMB”) information and quality guidelines,1 and the 

Department’s IQA guidelines.2 

1 In April 2019, OMB issued a memorandum requiring all agencies, including the Department, to update their IQA 

guidelines to “to reflect recent innovations in information generation, access, management, and use, and to help agencies address 

common problems with maintaining information quality.” See Memorandum from Russell T. Vought, Acting Dir., Office of 

Mgmt. and Budget on Improving Implementation of the Information Quality Act to the Heads of Executive Departments and 

Agencies 1 (Apr. 24, 2019). The memorandum instructed agencies to update their IQA guidelines in twenty separate ways and set 

a deadline of ninety days to do so. Id. at 2. The Department’s current IQA guidelines, attached hereto as Exhibit A (hereinafter 

the ”ED Guidelines”), note this directive and state that the Department is “in the process of revising the[] guidelines.” Ex. A at 

1. Because OMB’s July 24, 2019 deadline has already passed, however, the Department is currently out of compliance. 2 The Department has failed to provide clear and consistent guidance on how to submit an appeal. In the Department’s 

current PDF version of the IQA Guidelines, the Department instructs the public to submit appeals to the Department’s Chief 

Information Officer. Ex. A at 14–15. At the time the Petition was filed, however, the PDF version instructed the public to 

submit appeals to the Principal Deputy Assistant Secretary in the Office of Management. See Ex. B, Petition at *26. In the 

current non-PDF version (https://www2.ed.gov/policy/gen/guid/iq/iqg_5a.html), the Department instructs the public to 

submit appeals to the Director of the Information Collection Clearance Division. Out of an abundance of caution, we are 

providing this Appeal by email to both currently suggested recipients. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IQA Appeal 

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Page 2 of 21 

July 31, 2019 

Student Defense’s Petition3 focused on the Department’s August 2018 publication of a Notice of Proposed 

Rulemaking (“NPRM”) that proposed to “rescind” the Department’s Gainful Employment regulation.4 As 

stated in the Petition, the NPRM included an abundance of factual claims without disclosing the underlying 

sources or methodologies, a clear failure to comply with the IQA. Additionally, as the Petition noted, where 

the NPRM did cite sources, it still violated the IQA by repeatedly stating conclusions that were not clearly 

supported by the evidence. These failures rendered meaningless the entire purpose of the public comment 

period. 

On July 1, 2019, the Department responded to the Petition by issuing a final rule that rescinded the Gainful 

Employment regulation.5 Although the Department included sufficient information to resolve some of the 

IQA violations identified in the NPRM, its response is nevertheless insufficient for two reasons. First, the 

proper response to an IQA violation is to rescind the original NPRM and, if the Department so chooses, 

reissue a new version that fully complies with the IQA. Rather than doing so here, the Department has 

instead opted to issue a new document with new information. Second, the vast majority of the 

Department’s responses to the Petition were inadequate, incomplete, or in error. As a result, Student 

Defense hereby submits this Appeal and again demands that the Department rescind the NPRM and its 

accompanying final rule. 

Specific IQA Violations on Appeal 

Irrespective of how to properly remedy an IQA violation, many of the challenged statements from the 

NPRM have not been sufficiently addressed. The charts below provide: (1) a specific description of 

information disseminated in the NPRM that violates the IQA; (2) the basis for each IQA violation, 

including, where appropriate, an explanation of why a particular statement contains inaccurate, unreliable, or 

misleading information; and (3) the Department’s response to each violation.6 Following each challenged 

statement, we explain the basis for the appeal. 

3 Student Defense incorporates by reference its prior arguments regarding the grounds for disclosure and correction under 

the IQA. Ex. B at *4–*5. 4 See generally Program Integrity: Gainful Employment, 83 Fed. Reg. 40,167 (Aug. 14, 2018). 5 See Email from Stephanie Valentine, OM Information Quality, to Robyn Bitner, Student Defense (Sept. 10, 2018), 

https://www2.ed.gov/policy/gen/guid/iq/ed-response-iqa-bitner.pdf. Although the Department initially alleged that Student 

Defense’s Petition was “not considered a proper request under the Information Quality Act,” id., the Department later apologized 

and clarified—consistent with the ED Guidelines—that “[a] response . . . will be provided as part of the department’s response 

under the Notice of Proposed Rulemaking,” see Exhibit C, Email Correspondence at *1. See also Ex. A at 13 (specifying that 

“[c]omments about information on which the Department has sought public comment, such as rulemaking or studies cited in a 

rulemaking, will be responded to through the public comment process, or through an individual response if there was no 

published process for responding to all comments”). The Department then included a response to the Petition in the preamble to 

the final rule, attached hereto as Exhibit D. See also Program Integrity: Gainful Employment, 84 Fed. Reg. 31,392, 31,426–35 (July 

1, 2019). Although the Department also stated that “[o]nce final, the response w[ould] be provided to [Student Defense],” Ex. C 

at at *1, we have received no direct communication from the Department with its response. Consequently, we are treating the 

statements in the preamble to the final rule as the Department’s official response to the Petition. 6 In its Petition, Student Defense provided a chart that gave a specific description of information disseminated in the 

NPRM that violates the IQA and the basis for each IQA violation, including an explanation of why particular statements 

contained inaccurate, unreliable, or misleading information. See Ex. B, Petition at *5–*14. The first two columns of the charts 

contained herein are identical to the original chart submitted in that Petition. The third column contains information taken from 

the Department’s response to the Petition in the final rule. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IQA Appeal 

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NPRM STATEMENT IQA VIOLATION DEPARTMENT RESPONSE 

“In promulgating the 2011 and 

2014 regulations, the Department 

cited as justification for the 8 

percent D/E rates threshold a 

research paper published in 2006 by 

Baum and Schwartz that described 

the 8 percent threshold as a 

commonly used mortgage eligibility 

standard. However, the Baum & 

Schwartz paper makes clear that the 

8 percent mortgage eligibility 

standard ‘has no particular merit or 

justification’ when proposed as a 

benchmark for manageable student 

loan debt. . . . Upon further review, 

we believe that the recognition by 

Baum and Schwartz that the 8 

percent mortgage eligibility 

standard ‘has no particular merit or 

justification’ when proposed as a 

benchmark for manageable student 

loan debt is more significant than 

the Department previously 

acknowledged and raises questions 

about the reasonableness of the 8 

percent threshold as a critical, highstakes test of purported program 

performance.”7 

1. Fails to present conclusions 

that are strongly supported by 

the data 

a. This failure has been 

highlighted recently by 

Sandy Baum, the co-author 

of the 2006 study cited by 

the Department. In that 

post, Baum stated that “the 

Department of Education 

has misrepresented my 

research, creating a 

misleading impression of 

evidence-based 

policymaking. The 

Department cites my work 

as evidence that the GE 

standard is based on an 

inappropriate metric, but 

the paper cited in fact 

presents evidence that 

would support making the 

GE rules stronger.”8 

b. Baum further asserts that 

“[the Department is] 

correct that we were 

skeptical of [the 8 percent] 

standard for determining 

affordable payments for 

individual borrowers, but 

incorrect in using that 

skepticism to defend 

repealing the rule. In fact, 

our examination of a range 

of evidence about 

reasonable debt burdens 

for students would best be 

interpreted as supporting a 

stricter standard.”9 That is 

because Baum and her coauthor’s “research set a 

“The Department is aware of and 

respects Ms. Baum’s opinion that 

the 2014 Rule should not be 

rescinded. However, that does not 

change the fact that in their earlier 

paper, Baum’s [sic] and Schwartz’s 

[sic] state that the eight percent 

mortgage eligibility standard has ‘no 

particular merit or justification’ as a 

benchmark for manageable student 

loan debt. Since this paper was 

cited in the 2014 Rule as the source 

of the eight percent threshold, it is 

relevant that even the authors of 

the paper are skeptical of the merit 

of the 8 percent threshold as a 

student debt standard. It is not 

only appropriate, but essential, that 

the Department points out that 

upon a more careful reading of the 

paper, we realize that the paper 

does not support the eight percent 

threshold, but instead clearly refutes 

it for the purpose of establishing 

manageable student loan debt. . . . 

[T]he commenter did . . . not 

provide a specific threshold for 

what the number should be and the 

negotiating committee similarly was 

unable to identify a reliable 

threshold for the D/E rates 

measure.”11 

7 83 Fed. Reg. at 40,171. 8 Sandy Baum, “DeVos Misrepresents the Evidence in Seeking Gainful Employment Deregulation,” Urban Wire: Education 

and Training (Aug. 22, 2018), https://www.urban.org/urban-wire/devos-misrepresents-evidence-seeking-gainful-employmentderegulation. 9 Id. 

84 Fed. Reg. at 31,426. 11 
 

 

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guideline for a level of debt 

payments no individual 

student should exceed. 

Under GE, half of a 

program’s graduates could 

exceed this limit before 

sanctions would kick in.”10 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Basis for Appeal: The Department’s response is inadequate and in error. It fails to sufficiently and 

adequately address Dr. Baum’s argument that, although she and her co-author were skeptical of the eight 

percent standard for determining affordable student loan payments, such skepticism was not meant to 

“clearly refute[] [that threshold].” Rather, Ms. Baum’s blog post clarified that their skepticism should 

“support[] a stricter standard” for the level of debt payments that no student loan borrower should exceed. 

In other words, a proper reading of Dr. Baum’s work suggests that the Department should lower the D/E 

rates threshold to below eight percent, not eliminate the standard altogether. But under the guise of “a 

more careful reading of th[at] paper,”the Department ignores Dr. Baum’s clarification and further distorts 

her research.12 

NPRM STATEMENT IQA VIOLATION DEPARTMENT RESPONSE 

“Research published subsequent to 

the promulgation of the GE 

regulations adds to the 

Department’s concern about the 

validity of using D/E rates as to 

determine whether or not a 

program should be allowed to 

continue to participate in title IV 

programs.”13 

1. Fails to identify data sources, 

including whether it is peerreviewed and scientific 

evidence-based 

2. Fails to confirm and document 

the reliability of the data and 

acknowledge any shortcomings 

or explicit errors 

3. Fails to “be accompanied by 

supporting documentation that 

allows an external user to 

understand clearly the 

information and be able to 

“The Department has used wellrespected, peer-reviewed references 

to substantiate its reasons 

throughout these final regulations 

for believing that D/E rates could 

be influenced by a number of 

factors other than program 

quality.”14 

10 Sandy Baum, “DeVos Misrepresents the Evidence in Seeking Gainful Employment Deregulation,” Urban Wire: Education 

and Training (Aug. 22, 2018), https://www.urban.org/urban-wire/devos-misrepresents-evidence-seeking-gainful-employmentderegulation. 12 The Department also included a discussion of Dr. Baum’s work elsewhere in the final rule. See 84 Fed. Reg. at 31,407. 

But that discussion does not ameliorate the Department’s IQA violation here. 

In addition, the Department has mischaracterized Dr. Baum’s research in other ways. In a letter to the editor published 

after the Department issued its final rule rescinding the Gainful Employment regulation, Dr. Baum—together with her co-author, 

Dr. Harry Holzer—asserted that the Department, once again, “seriously distort[ed]” their findings about the value of an associate 

degree in liberal arts from a community college. See Sandy Baum & Harry Holzer, “DOE’s Justification for Rescinding Gainful 

Employment Rules Distorts Research,” The Chronicle of Higher Education (July 3, 2019), 

https://www.chronicle.com/blogs/letters/does-justification-for-rescinding-gainful-employment-rules-distorts-research/. The 

Department used their research to argue that the Gainful Employment rule unfairly singled out for-profit colleges. Id. But “the 

problems [their research identified] that some community college students face in no way justify loosening the accountability for 

for-profit colleges.” Id. Disputes like these only further highlight the Department’s failure to disseminate quality information in 

the NPRM. 

13 83 Fed. Reg. at 40,171. 

84 Fed. Reg. at 31,427. 14 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IQA Appeal 

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Page 5 of 21 

July 31, 2019 

reproduce it, or understand the 

steps involved in producing it” 

Basis for Appeal: The Department’s response is inadequate and incomplete. As an initial matter, it fails to 

identify with any specificity the “well-respected, peer-reviewed references” that provide support for its 

assertion in the NPRM that D/E rates can be influenced by factors other than program quality. In addition, 

the Department’s claim that a reference is “well-respected” or “peer-reviewed” does not make it true. If the 

Department opts to characterize research this way, it must be precise and specific in order to comply with 

the IQA. 

NPRM STATEMENT IQA VIOLATION DEPARTMENT RESPONSE 

“[T]he highest quality programs 

could fail the D/E rates measures 

simply because it costs more to 

deliver the highest quality program 

and as a result the debt level is 

higher.”15 

1. Fails to identify data sources 

2. Fails to “be accompanied by 

supporting documentation that 

allows an external user to 

understand clearly the 

information and be able to 

reproduce it, or understand the 

steps involved in producing it” 

“The Department cites research 

from CSU Sacramento that serves 

as evidence that high quality career 

and technical education programs 

can be more than four times as 

expensive to run as general studies 

programs.”16 

Basis for Appeal: The Department’s response is inadequate and incomplete. It provides only a single, 

partial citation—which includes three last names and no other identifying information—for the CSU 

Sacramento study. After searching the final rule, we assume that the full citation can be found at footnote 

37.17 The text accompanying that footnote states that “[career and technical]-focused education can be four 

or five times more expensive to administer than liberal arts or general studies education.”18 Although the 

Department does not note with any specificity where this data is located in the CSU Sacramento study, it 

appears to come from Figure 1. But that figure refers to the institutional costs of running career and 

technical education programs at community colleges, not the cost of running similar programs at proprietary 

schools. Although the Department argued in the NPRM that it costs more to deliver “the highest quality 

program,” it provided a source that compares career and technical education and general studies programs 

at one type of school. Thus, the Department’s response fails to meet its obligations under the IQA. 

NPRM STATEMENT IQA VIOLATION DEPARTMENT RESPONSE 

“Other research findings suggest 

that D/E rates-based eligibility 

creates unnecessary barriers for 

institutions or programs that serve 

larger proportions of women and 

minority students. Such research 

indicates that even with a college 

education, women and minorities, 

on average, earn less than white 

1. Fails to draw upon peerreviewed sources 

2. Fails to acknowledge any 

shortcomings or explicit errors 

in the data 

3. Fails to present conclusions that 

are strongly supported by the 

data 

“The NPRM cites data provided by 

the College Board that points to 

disparities in earnings between men 

and women and people of color. 

The College Board is a reliable and 

trusted source of data, and its 

publications undergo rigorous peer 

review prior to publication. 

. . . 

15 83 Fed. Reg. at 40,171. 16 84 Fed. Reg. at 31,427 (including a citation to “Shulock, Lewis and Tan”). 17 84 Fed. Reg. at 31,399 n.37. 18 84 Fed. Reg. at 31,399. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IQA Appeal 

U.S. Department of Education 

Page 6 of 21 

July 31, 2019 

men who also have a college degree, 

and in many cases, less than white 

men who do not have a college 

degree.”19 

a. Indeed, the source cited by 

the Department does not 

draw this same conclusion. 

For example, the cited table 

appears to relate to 

graduates of bachelor’s degree 

programs, not gainful 

employment programs. 

4. Fails to “be accompanied by 

supporting documentation that 

allows an external user to 

understand clearly the 

information and be able to 

reproduce it, or understand the 

steps involved in producing it” 

While [the data cited from the U.S. 

Census Bureau’s Current Population 

Survey] did not address GE 

programs specifically, the point is 

that there are general earnings 

disparities based on race and 

gender. Programs that serve large 

proportions of women and 

minorities, therefore, would likely 

post lower earnings than programs 

of similar quality primarily serving 

whites and males. . . . The 

Department agrees that our 

statement is an vpolation of the data 

provided, but this extrapolation is 

well reasoned and supported by 

other research. Given that 

proprietary institutions serve the 

largest proportions of women and 

minority students, and that some 

GE programs . . . serve much larger 

proportions of female students, it is 

likely that student demographics will 

impact earnings among these 

programs.”20 

Basis for Appeal: The Department’s response is inadequate and incomplete. The NPRM states that “D/E 

rates-based eligibility creates unnecessary barriers for institutions or programs that serve large proportions 

of women and minority students.”21 Because the Department refers to “D/E rates-based eligibility,” it is 

natural to conclude that the “institutions or programs” involved are GE programs. But, as noted in the 

Petition, the Department’s source relates to graduates of bachelor’s degree programs only. Despite this 

obvious mismatch, the NPRM nevertheless states that the cited research “indicates” that “even with a 

college education, women and minorities, on average, earn less than white men who also have a college 

degree, and in many cases, less than white men who do not have a college degree.”22 After being pressed on 

this point, the Department now concedes that “the [cited] research did not address GE programs” and that 

its statement in the NPRM was an “extrapolation of the data provided.”23 But the NPRM did not make this 

point clear to the public. Moreover, the Department now asserts that its “extrapolation is well reasoned and 

supported by other research.”24 But it fails to identify anywhere in the NPRM or the final rule the source of 

this “other research,” a clear violation of the IQA. Finally, the Department admits in the preamble to the 

83 Fed. Reg. at 40,171 (citing Jennifer Ma et al., “Education Pays 2016: The Benefits of Higher Education for 

Individuals and Society,” CollegeBoard Trends in Higher Education Series Figure 2.4 (2016), 

https://trends.collegeboard.org/sites/default/files/education-pays-2016-full-report.pdf). 20 84 Fed. Reg. at 31,427. 21 83 Fed. Reg. at 40.171. 22 Id. 23 84 Fed. Reg. at 31,427. 24 Id. 

19 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IQA Appeal 

U.S. Department of Education 

Page 7 of 21 

July 31, 2019 

final rule that it has “not analyzed the racial or ethnic demographics of students served by programs that 

failed the 2015 D/E calculations.”25 There is also is no evidence to suggest that the Department analyzed 

the gender demographics of those same students. Of course, the Department has the capacity to undertake 

this sort of analysis to support the factual statements that it makes. Rather than doing so, the Department 

has chosen instead to rely upon an “extrapolation” of external research that focuses on the wrong type of 

program. For these reasons, the Department’s response is insufficient to remedy its IQA violation. 

NPRM STATEMENT IQA VIOLATION DEPARTMENT RESPONSE 

“[D]ue to a number of concerns 

with the calculation and relevance of 

the debt level included in the rates[,] 

we do not believe that the D/E 

rates measure achieves a level of 

accuracy that it should alone 

determine whether or not a program 

can participate in title IV 

programs.”26 

1. Fails to clearly describe the 

research study approach 

2. Fails to identify data sources 

3. Fails to confirm and document 

the reliability of the data 

4. Fails to undergo peer review 

5. Fails to “be accompanied by 

supporting documentation that 

allows an external user to 

understand clearly the 

information and be able to 

reproduce it, or understand the 

steps involved in producing it” 

“No research is needed to show that 

a student in a 20-year repayment 

plan will pay a lower monthly and 

annual payment than one in a 10-

year repayment plan as this is a well 

understood mathematical fact. Since 

REPAYE created an opportunity for 

all students to qualify for 20- to 25-

year repayment term . . . it is 

unreasonable to use a 10- or 15-year 

amortization period to calculate the 

annual cost of student loan 

repayment just because GE 

programs tend to serve a larger 

proportion of non-traditional 

students. . . . The 2015 REPAYE 

regulations, coupled with the gainful 

employment rule, established a 

double standard that sanctions 

proprietary institutions if their 

graduates need income driven 

repayment programs to repay their 

loans, and promises graduates of 

non-profit institutions income-based 

repayment and loan forgiveness in 

return for irresponsibly 

borrowing.”27 

Basis for Appeal: The Department’s response is inadequate and incomplete. It fails to identify any sources 

to support its assertion that the D/E rates are not accurate enough to determine Title IV eligibility. It also 

fails to identify any sources regarding its consideration of alternative measures or thresholds, as well as their 

potential accuracy. In addition, rather than address the data quality issue, the Department engages instead in 

a policy debate about the impact of a particular income-based repayment plan (REPAYE) on the D/E rates, 

which measure the average total debt load compared to earnings of an identified group of students.28 

25 84 Fed. Reg. at 31,414. 26 83 Fed. Reg. at 40,171. 27 84 Fed. Reg. at 31,428. 28 Id. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Despite the fact that millions of borrowers who attended GE programs are not enrolled in REPAYE, the 

Department nevertheless claims that the “REPAYE program renders the 20 percent debt-to-discretionary 

income threshold in the 2014 Rule obsolete since no borrower would ever be required to pay more than 10 percent 

of their discretionary income.”29 Even if true, the fact that so many borrowers would need to enroll in 

REPAYE long enough to have theit debts forgiven is—contrary to the Department’s statements—evidence 

that GE programs are failing to produce graduates with sufficient earnings. Ultimately, the Department’s 

policy arguments are beside the point and insufficient to resolve its violation of the IQA. 

NPRM STATEMENT IQA VIOLATION DEPARTMENT RESPONSE 

“[I]ncreased availability of [incomedriven] repayment plans with longer 

repayment timelines is inconsistent 

with the repayment assumptions 

reflected in the shorter amortization 

periods used for the D/E rates 

calculation in the GE regulations.”30 

1. Fails to rely upon peer-reviewed, 

scientific evidence-based 

research 

2. Fails to identify data sources 

3. Fails to confirm and document 

the reliability of the data 

4. Fails to “be accompanied by 

supporting documentation that 

allows an external user to 

understand clearly the 

information and be able to 

reproduce it, or understand the 

steps involved in producing it” 

“This comment is a statement of 

fact, which is substantiated by 

information provided on the Federal 

Student Aid website.”31 

Basis for Appeal: The Department’s response is inadequate and incomplete. While the FSA website does 

include a description of income-driven repayment plans—which may permit longer repayment 

timeframes—available to borrowers, nothing on that website indicates when each plan became available or 

why the availability of such plans is inconsistent with the assumptions made in the 2014 Gainful 

Employment rule. Thus, the Department’s response does not support its factual assertion. 

NPRM STATEMENT IQA VIOLATION DEPARTMENT RESPONSE 

“[A] program’s D/E rates can be 

negatively affected by the fact that it 

enrolls a large number of adult 

students who have higher Federal 

borrowing limits, thus higher debt 

levels, and may be more likely than a 

traditionally aged student to seek 

part-time work after graduation in 

order to balance family and work 

responsibilities.”32 

1. Fails to rely upon peer-reviewed, 

scientific evidence-based 

research 

2. Fails to identify data sources 

3. Fails to confirm and document 

the reliability of the data 

“It is a statement of fact that 

independent students have higher 

Federal loan borrowing limits, 

because Congress established those 

higher limits for independent 

students (which include students 

over the age of 25, graduate students, 

married students, and students with 

dependents). Independent students 

can borrow up to $57,500 for 

undergraduate studies whereas 

dependent students can borrow only 

$31,000. Simple mathematics 

29 84 Fed. Reg. at 31,407 (emphasis added). 30 83 Fed. Reg. at 40,172. 31 84 Fed. Reg. at 31,428 (citing “studentaid.ed.gov/sa/repay-loans/understand/plans”). 32 83 Fed. Reg. at 40,172. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IQA Appeal 

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Page 9 of 21 

July 31, 2019 

explain that if a larger proportion of 

students can borrow $57,500 rather 

than $31,000 to complete a 

bachelor’s degree, the median debt 

level will be higher at an institution 

that serves a large [sic] portion of 

independent students than 

dependent students. . . . Therefore, it 

is not surprising that institutions 

serving larger proportions of 

independent students will have 

higher median borrowing levels, and 

since proprietary institutions serve 

the highest portion of independent 

students, it is not unreasonable that 

these institutions would have higher 

median debt levels, which they do. 

Data reported by Pew proves that 

the percentage of college graduates 

who work part-time rather than fulltime increased from 15 percent in 

2000 to 23 percent in 2011. We have 

addressed concerns about data 

regarding adult students working 

part-time and the gender gap in 

earnings earlier in these final 

regulations. Research provided by 

the Center for American Progress 

substantiates that even among 

college graduates, women tend to 

earn less than men, in part because 

they select lower paying majors and 

in part because of time spent out of 

the workforce raising children. The 

Pew Research Center confirms that a 

higher percentage of women take 

time out of their career or work parttime because of child-rearing 

responsibilities.”33 

Basis for Appeal: The Department’s response is inadequate and incomplete. It fails to identify any sources 

to show how an institution’s D/E rates are negatively impacted by enrolling larger numbers of independent 

students who may seek part-time work after graduation. It also fails to include any sources about the exact 

number of independent vs. dependent students enrolled in GE programs and the number of those 

84 Fed. Reg. at 31,428 (citing “studentaid.ed.gov/sa/fafsa/filling-out/dependency,” 

“www.urban.org/sites/default/alfresco/publication-pdfs/2000191-Student-Debt-Who-Borrows-Most-What-Lies-Ahead.pdf,” 

“cdn.americanprogress.org/wp-content/uploads/2016/09/06111119/HigherEdWageGap.pdf,” and 

“www.pewsocialtrends.org/2013/12/11/10-findings-about-women-in-the-workplace/”). 

33 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IQA Appeal 

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graduates who go on to work part-time. Instead, the Department mentions that federal borrowing limits are 

higher for independent students than dependent students and claims, without any evidence, that proprietary 

institutions serve the highest portion of independent students and, therefore, have higher median debt 

levels. In making this claim, the Department ignores the fact that the cost of attendance plays a more direct 

role in student debt levels, that proprietary institutions typically charge much higher tuition for comparable 

GE programs, and that GE program graduates often find it difficult to secure jobs with sufficient earnings 

to pay off their student loan debt. Although the Department does include a citation to Pew research 

demonstrating that the number of college graduates seeking part-time work increased slightly from 2000 to 

2011, such data is not limited to GE program graduates. Moreover, the Department provides no recent 

data to show that this trend continues today. Finally, the Departments cites research from the Center for 

American Progress and Pew demonstrating that women earn less than men after graduation and more often 

prioritize raising a family for portions of their career. But again, the Department fails to show how this data 

applies to GE programs specifically. For all of these reasons, the Department’s IQA violation remains. 

NPRM STATEMENT IQA VIOLATION DEPARTMENT RESPONSE 

“[I]t is the cost of administering the 

program that determines the cost of 

tuition and fees.”34 

1. Fails to rely upon peer-reviewed, 

scientific evidence-based 

research 

2. Fails to identify data sources 

3. Fails to confirm and document 

the reliability of the data 

4. Fails to “be accompanied by 

supporting documentation that 

allows an external user to 

understand clearly the 

information and be able to 

reproduce it, or understand the 

steps involved in producing it” 

“The Department did not state that 

it is the cost of administering 

academic programs that determines 

tuition and fees. To the contrary, the 

Department made clear in the 

NPRM that at most non-profit 

institutions, direct taxpayer 

appropriations and tuition surpluses 

generated from the low-cost 

programs the institution administers 

are used to offset the financial 

demands of higher cost programs. 

. . . [I]n some cases, the cost of 

tuition and fees is driven by the 

higher cost of administering some 

programs. The Shulock, Lewis[,] and 

Tan Study provides peer[-]reviewed 

research to support this position.”35 

Basis for Appeal: The Department’s response is in error. The Department’s claim that it “did not state 

that it is the cost of administering academic programs that determines tuition and fees” is false.36 One only 

needs to check the NPRM, which states: “[I]t is the cost of administering the program that determines the 

cost of tuition and fees.”37 We do not understand how the Department is now refuting the existence of a 

statement that it undeniably published in the Federal Register. 

34 83 Fed. Reg. at 40,172. 35 84 Fed. Reg. at 31,429. 36 Id. 37 83 Fed. Reg. at 40,172. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IQA Appeal 

U.S. Department of Education 

Page 11 of 21 

July 31, 2019 

NPRM STATEMENT IQA VIOLATION ED RESPONSE 

“Programs that serve large 

proportions of adult learners may 

have very different outcomes from 

those that serve large proportions of 

traditionally aged learners.”38 

1. Fails to rely upon peer-reviewed, 

scientific evidence-based 

research 

2. Fails to identify data sources 

3. Fails to confirm and document 

the reliability of the data 

4. Fails to “be accompanied by 

supporting documentation that 

allows an external user to 

understand clearly the 

information and be able to 

reproduce it, or understand the 

steps involved in producing it” 

“The Department offers as evidence 

to support the statement made in the 

NPRM data from the NCES Study 

of Persistence and Attainment of 

Nontraditional Students.”39 

Basis for Appeal: The Department’s response is inadequate and incomplete. It fails to explain how the 

cited research, which took place in 1994 on a cohort of students from the 1989-1990 school year, remains 

reliable today. Over the past thirty years, higher education and higher education finance have changed 

dramatically, requiring updated data to justify the Department’s policymaking to comply with the IQA.40 

NPRM STATEMENT IQA VIOLATION DEPARTMENT RESPONSE 

“[T]he first set of D/E rates, 

published in 2016, revealed that the 

D/E rates, and particularly earnings, 

vary significantly from one 

occupation to the next, and across 

geographic regions within a single 

occupation.”41 

1. Fails to clearly describe the 

research study approach 

2. Fails to confirm and document 

the reliability of the data 

3. Fails to undergo peer review 

4. Fails to “be accompanied by 

supporting documentation that 

allows an external user to 

understand clearly the 

information and be able to 

None 

38 83 Fed. Reg. at 40,172. 39 84 Fed. Reg. at 31,429 (citing “nces.ed.gov/pubs/web/97578g.asp”). 40 See, e.g., Ronald Brownstein, “American Higher Education Hits a Dangerous Milestone,” The Atlantic (May 3, 2018), 

https://www.theatlantic.com/politics/archive/2018/05/american-higher-education-hits-a-dangerous-milestone/559457/ (“In 

1992, tuition accounted for slightly less than three-tenths of the total educational revenue for public colleges and universities. But 

by 2017, tuition supplied nearly half of the total revenue. In 28 states last year, tuition provided more revenue than public 

appropriations . . . . That was the first time a majority of states funded post-secondary education mostly through tuition.”); id. 

(“This historic shift away from tax dollars funding the bulk of public higher education comes precisely as the nation’s youth 

population is crossing a succession of milestones to become more racially diverse than ever. . . . More diversity among students 

means higher education is drawing more deeply on those who have faced economic and academic inequities that reduce their 

odds of success.”); Michael Mitchell et al., “A Lost Decade in Higher Education Funding,” Center on Budget and Policy Priorities (Aug. 

23, 2017), https://www.cbpp.org/research/state-budget-and-tax/a-lost-decade-in-higher-education-funding (“The funding 

decline has contributed to . . . reduced quality on campuses as colleges have had to balance budgets by reducing faculty, limiting 

course offerings, and in some cases closing campuses. At a time when the benefit of a college education has never been greater, 

state policymakers have made going to college less affordable and less accessible to the students most in need.”). 

83 Fed. Reg. at 40,172. 41 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IQA Appeal 

U.S. Department of Education 

Page 12 of 21 

July 31, 2019 

reproduce it, or understand the 

steps involved in producing it” 

Basis for Appeal: The Department’s response is inadequate and incomplete because it did not include a 

response to this specific IQA violation. 

NPRM STATEMENT IQA VIOLATION DEPARTMENT RESPONSE 

“Table 1—Number and Percentage 1. Fails to clearly describe the “[This table] from the NPRM . . . 

of GE 2015 Programs That Would research study approach and w[as] provided by a negotiator who 

Pass, Fail, or Fall into the Zone data collection technique is an economist at Columbia and 

Using Different Interest Rates”42 2. Fails to identify data sources 

3. Fails to confirm and document 

the reliability of the data 

4. Fails to undergo peer review 

5. Fails to “be accompanied by 

supporting documentation that 

allows an external user to 

understand clearly the 

information and be able to 

reproduce it, or understand the 

steps involved in producing it” 

Cornell Universities and the Urban 

Institute, and who was one of the 

designers of the College Scorecard 

during the Obama Administration. 

Although he built his own model to 

calculate the impact of changing 

interest rates, the source of the 

underlying debt and earnings data 

was provided by the Department in 

the data files provided along with the 

2015 GE results.”43 

Basis for Appeal: The Department’s response is inadequate and incomplete. It fails to explain the 

methodology underlying the economist’s “own model” and whether the economist’s findings underwent 

peer review. As a result, the Department’s response is still not accompanied by enough supporting 

documentation to allow a member of the public to understand the steps involved in producing it. 

NPRM STATEMENT IQA VIOLATION DEPARTMENT RESPONSE 

“[T]he Department now recognizes 

that assigning a 10-year amortization 

period to graduates of certificate and 

associate degree programs for the 

purpose of calculating D/E rates 

creates is an unacceptable and 

unnecessary double standard since 

the REPAYE plan regulations 

promulgated in 2015 provide a 20-

year amortization period for those 

same graduates.”44 

1. Fails to draw upon peerreviewed, scientific evidencebased research None 

Basis for Appeal: The Department’s response is inadequate and incomplete because it did not include a 

response to this specific IQA violation. 

42 83 Fed. Reg. at 40,172. 43 84 Fed. Reg. at 31,432. 44 83 Fed. Reg. at 40,172–73. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IQA Appeal 

U.S. Department of Education 

Page 13 of 21 

July 31, 2019 

NPRM STATEMENT IQA VIOLATION DEPARTMENT RESPONSE 

“There is significant variation in 

methodologies used by institutions 

to determine and report in-field job 

placement rates, which could mislead 

students into choosing a lower 

performing program that simply 

appears to be higher performing 

because a less rigorous methodology 

was employed to calculate in-field 

job placement rates.”45 

1. Fails to clearly describe the 

research study approach and 

data collection technique 

2. Fails to clearly identify data 

source 

3. Fails to “be accompanied by 

supporting documentation that 

allows an external user to 

understand clearly the 

information and be able to 

reproduce it, or understand the 

steps involved in producing it” 

“The Department cited in the 

NPRM the findings of the Technical 

Review Panel (TRP), convened in 

response to the 2011 GE regulations 

to address the confusion created by 

multiple job placement rate 

definitions. This TRP is a trusted 

source, as is the external research 

that was retained to provide 

background research on job 

placement rates.”46 

Basis for Appeal: The Department’s response is inadequate and incomplete. While it mentions the TRP’s 

findings and other “external research” on job placement rates, it fails to identify the TRP findings with a 

specific citation, citing only a “background paper” prepared for the TRP. We assume that the Department 

is referring to a TRP report cited in the NPRM at footnote 13.47 But that report—first considered by the 

Department when it promulgated the Gainful Employment rule in 2014—was published in 2011. The 

Department provides no evidence that the report’s findings remain true today, particularly with the 

heightened focus on job placement rates following the collapse of Corinthian Colleges, Inc. More 

importantly, the fact that there are differing methodologies for calculating a job placement rate does not, by 

itself, mean that one involves a “a less rigorous methodology” than another. For that reason, the 

Department continues to violate the IQA. 

NPRM STATEMENT IQA VIOLATION DEPARTMENT RESPONSE 

“The Department also believes that 

it underestimated the burden 

associated with distributing the 

disclosures directly to prospective 

students. . . . A negotiator 

representing financial aid officials 

confirmed our concerns, stating that 

large campuses, such as community 

colleges that serve tens of thousands 

of students and are in contact with 

many more prospective students, 

would not be able to, for example, 

distribute paper or electronic 

disclosures to all the prospective 

students in contact with the 

institution.”48 

1. Fails to draw upon peerreviewed, scientific-evidence 

based research 

2. Fails to confirm and document 

the reliability of the data 

“[T]he Department did not require 

the negotiator to provide data to 

substantiate her claim. Nonetheless, 

while the Department cited 

regulatory burden as a contributing 

factor to its decision to rescind the 

GE regulations, it was not the 

primary reasons [sic] for making this 

decision. The primary reason . . . is 

evidence that the D/E rates measure 

is not a reliable proxy for quality.”49 

45 83 Fed. Reg. at 40,173. 46 84 Fed. Reg. at 31,429 (citing “nces.ed.gov/npec/data/Calculating_Placement_Rates_Background_Paper.pdf”). 47 83 Fed. Reg. at 40,173 n.12. 48 83 Fed. Reg. at 40,173. 49 84 Fed. Reg. at 31,429. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IQA Appeal 

U.S. Department of Education 

Page 14 of 21 

July 31, 2019 

Basis for Appeal: The Department’s response is inadequate and incomplete. Essentially, the Department 

concedes that it does not have the supporting data to justify its assertion in the NPRM that institutions will 

be unable to distribute disclosures to all prospective students. It also fails to identify sources for its claim 

that it “underestimated the burden associated with distributing the disclosures directly to prospective 

students,” instead claiming that regulatory burden “was not the primary reasons [sic] for [rescinding the 

Gainful Employment regulation].” Whether a statement is a reason for the Department’s action is not 

relevant under the IQA. Rather; the point of the IQA is to ensure that the Department makes factually 

accurate and supportable statements. The Department has failed to meet that standard here. 

NPRM STATEMENT IQA VIOLATION DEPARTMENT RESPONSE 

“The Department believes that the 

best way to provide disclosures to 

students is through a data tool that is 

populated with data that comes 

directly from the Department, and 

that allows prospective students to 

compare all institutions through a 

single portal, ensuring that important 

consumer information is available to 

students while minimizing 

institutional burden.”50 

1. Fails to draw upon peerreviewed, scientific evidencebased research 

2. Fails to identify data sources 

a. Specifically, in the 2014 

Rule, the Department 

stated that it “would 

conduct consumer testing” 

to determine how to make 

student disclosures as 

meaningful as possible.51 

The NPRM fails to 

acknowledge whether such 

testing occurred, including 

the results of that testing. 

The NPRM also fails to 

state any other basis for the 

Department’s conclusions. 

“The Department did conduct 

consumer testing on the disclosure 

template after the 2014 Rule went 

into effect, the results of which 

proved that disclosures are typically 

very confusing to students, that the 

results presented are frequently 

misinterpreted, and that in general, 

students find disclosures most 

meaningful when they provide 

information about the students 

included in the disclosures, including 

what course loads the students were 

taking.”52 

Basis for Appeal: The Department’s response is inadequate, incomplete, and in error. It fails to cite any 

consumer testing that supports what the Department now believes to be “the best way to provide 

disclsoures to students.” Instead, it identifies a single source of consumer testing that it conducted on 2014 

student disclosure templates. But that source states: 

[D]ata collected from these two focus groups cannot be generalized; the people who participated 

may not necessarily be representative of the larger population of students who may benefit from GE 

50 83 Fed. Reg. at 40,173. 51 See, e.g., 34 C.F.R. §§ 668.410(a)(3), 668.412(a). See also 79 Fed. Reg. 64,890, 64,966 (Oct. 31, 2014) (“The regulations 

include text for the student warnings. The Secretary will use consumer testing to inform any modifications to the text that have 

the potential to improve the warning’s effectiveness. As a part of the consumer testing process, we will seek input from a wide 

variety of sources[.]”); id. at 64,969 (noting that while “direct delivery” of warnings to students “make it most likely that students 

receive . . . and review” the information, the Department would conduct consumer testing regarding the “most effective delivery 

methods”). 

52 84 Fed. Reg. at 31,430 (citing “Bozeman, Holly, and Meaghan Mingo, ‘Summary Report for the Gainful Employment 

Focus Groups,’ Prepared for the U.S. Department of Education, February 10, 2016, 

www2.ed.gov/about/offices/list/ope/summaryrptgefocus216.pdf”). 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IQA Appeal 

U.S. Department of Education 

Page 15 of 21 

July 31, 2019 

information. Additionally, the numbers involved were too small to justify extrapolation to the larger 

community.53 

Despite this clear statement not to apply its findings to the broader population of students attending GE 

programs, the Department nevertheless does exactly that to justify its policy decision. As a result, the 

Department continues to violate the IQA. 

NPRM STATEMENT IQA VIOLATION DEPARTMENT RESPONSE 

“[T]he Department does not believe 

it is appropriate to attach punitive 

actions to program-level outcomes 

published by some programs but not 

others. In addition, the Department 

believes that it is more useful to 

students and parents to publish 

actual median earnings and debt data 

rather than to utilize a complicated 

equation to calculate D/E rates that 

students and parents may not 

understand and that cannot be 

directly compared with the debt and 

earnings outcomes published by 

non-GE programs.”54 

1. Fails to draw upon peerreviewed, scientific evidencebased research 

2. Fails to identify data sources 

“Elsewhere in this document, the 

Department has provided adequate 

support for its assertion that the 

D/E rates measure is not sufficiently 

accurate or reliable to serve as the 

sole determinant of punitive action 

against a program or institution. The 

Department conducted significant 

consumer testing prior to the launch 

of the College Scorecard to better 

understand which data are most 

relevant to students and parents.”55 

Basis for Appeal: The Department’s response is inadequate and incomplete. As mentioned supra, Appeal 

at 7–8, it fails to identify any sources to support its assertion that the D/E rates are not accurate enough to 

determine Title IV eligibility. It also fails to identify any sources regarding its consideration of alternative 

measures or thresholds, as well as their potential accuracy. Finally, it fails to identify any sources for the 

“significant consumer testing” it conducted prior to the launch of the College Scorecard anywhere in the 

NPRM or final rule, including whether that testing concluded whether it is more effective to provide 

students with the D/E rate measures or median earnings and debt data. 

NPRM STATEMENT IQA VIOLATION DEPARTMENT RESPONSE 

“The Department has reviewed 

additional research findings, 

including those published by the 

Department in follow-up to the 

Beginning Postsecondary Survey of 

1994, and determined that student 

demographics and socioeconomic 

status play a significant role in 

determining student outcomes.”56 

1. Fails to identify data sources 

a. Specifically, the website cited 

by the Department links to 

the Beginning 

Postsecondary Survey of 

1994’s findings, and not the 

“additional research” 

mentioned by the 

Department, including the 

“The Department misstated the 

name of the reference from which it 

drew data regarding outcomes of 

non-traditional students. The 

NPRM should have said that ‘The 

Department has reviewed additional 

research findings, including the 1994 

follow-up on 1989-00 Beginning 

Postsecondary Survey, which 

53 Holly Bozeman et al., “Summary Report for the Gainful Employment Focus Group,” Westat 1-4 (Feb. 10, 2016), 

https://www2.ed.gov/about/offices/list/ope/summaryrptgefocus216.pdf. 54 83 Fed. Reg. at 40,174. 55 84 Fed. Reg. at 31,430. 

83 Fed. Reg. at 40,174. 56 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IQA Appeal 

U.S. Department of Education 

Page 16 of 21 

July 31, 2019 

Department’s own “followup.” 

2. Fails to confirm and document 

the reliability of the data 

3. Fails to “be accompanied by 

supporting documentation that 

allows an external user to 

understand clearly the 

information and be able to 

reproduce it, or understand the 

steps involved in producing it” 

determined that student 

demographics and socioeconomic 

status play a significant role in 

determining student outcomes. 

Other research reviewed included 

publications by the American 

Association of Colleges and 

Universities on the needs of adult 

learners, a publication about Adults 

Learners in Higher Education 

produced by the U.S. Department of 

Labor[,] and another research study 

that focused specifically on the needs 

of adult learners enrolled in online 

programs.”57 

Basis for Appeal: The Department’s response is inadequate and incomplete. It fails to address why the 

data from a 1994 study on a cohort of students from the 1989-1990 school year remains reliable today. 

Again, nearly thirty years later, higher education and higher education finance have changed dramatically, 

requiring updated data to justify the Department’s policymaking to comply with the IQA.58 

NPRM STATEMENT IQA VIOLATION DEPARTMENT RESPONSE 

“The GE regulations failed to take 

into account the abundance of 

research that links student outcomes 

with a variety of socioeconomic and 

demographic risk factors.”59 

1. Fails to identify data sources 

2. Fails to confirm and document 

the reliability of the data 

“This sentence refers to the same 

NCES study referenced in the 

NPRM and above.”60 

Basis for Appeal: The Department’s response is inadequate and incomplete. It fails to identify which 

NCES study it relies upon to support this factual assertion. In the final rule, the Department cites three 

separate NCES studies regarding student outcomes and demographics, including one involving income, one 

involving non-traditional students, and one involving race and ethnicity. In the NPRM, the Department 

also cites an NCES study involving non-traditional students. But the Department does not indicate which 

of these studies is “the same NCES study referenced in the NPRM and above.” Moreover, it is hard to 

comprehend how a single study provides an “abundance of research” on any topic, much less one that the 

Department allegedly ignored in 2010 and 2014. The Department has failed yet again to remedy its 

violation of the IQA. 

NPRM STATEMENT IQA VIOLATION DEPARTMENT RESPONSE 

“The GE regulations underestimated 

the cost of delivering a program and 

practices within occupations that 

1. Fails to present conclusions that 

are strongly supported by the 

data 

“The Department relied on the 

Delisle and Cooper’s [sic] research 

and analysis to substantiate that 

57 84 Fed. Reg. at 31,430 (citing “www.aacu.org/publications-research/periodicals/research-adult-learners-supportingneeds-student-population-no,” “files.eric.ed.gov/fulltext/ED497801/pdf,” and “eric.ed.gov/?id=ED468117”). 58 See supra note 40 for examples of sources that highlight these changes. 59 83 Fed. Reg. at 40,174. 60 84 Fed. Reg. at 31,430. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IQA Appeal 

U.S. Department of Education 

Page 17 of 21 

July 31, 2019 

may skew reported earnings. 

According to Delisle and Cooper, 

because public institutions receive 

State and local taxpayer subsidies, 

‘even if a for-profit institution and a 

public institution have similar overall 

expenditures (costs) and graduate 

earnings (returns on investment), the 

for-profit institution will be more 

likely to fail the GE rule, since more 

of its costs are reflected in student 

debt.’ Non-profit, private 

institutions also, in general, charge 

higher tuition and have students who 

take on additional debt, including 

enrolling in majors that yield societal 

benefits, but not wages 

commensurate with the cost of the 

institution.”61 

a. The Delisle and Cooper 

study cited by the 

Department does not 

support its conclusion that 

the GE regulations 

“underestimated the cost of 

delivering a program and 

practices within occupations 

that may skew reported 

earnings.” 

2. Fails to identify data sources 

public institutions are often able to 

charge less for enrollment than 

private and proprietary institutions 

because they receive direct 

appropriations from a State or local 

government, are not required to 

purchase or rent their primary 

campus buildings or land, and enjoy 

substantial tax benefits. As such, 

they can charge the student a lower 

price for a program that has similar 

overall expenditures as another 

program sponsored by a private 

institution.”62 

Basis for Appeal: The Department’s response is inadequate, incomplete, and in error. It fails to identify 

any sources to substantiate its assertion that “the GE regulations underestimated the cost of delivering a 

program and practices within occupations that may skew reported earnings.” It also fails to identify a 

source for the assertion that non-profit, private institutions “in general[] charger higher tuition and have 

students who take on additional debt, including enrolling in majors that yield societal benefits, but not 

wages, commensurate with the cost of the institution.” More importantly, its response misses the point that 

it drew a conclusion that is not strongly supported by the Delisle and Cooper research. Although that 

research does hypothesize at the outset that the reason more GE programs fail the 2014 Gainful 

Employment rule is because they do not receive state or local appropriations, that same study later 

concludes that “for-profits are different,” charging “higher net tuition than their public counterparts, even 

after accounting for direct state appropriations.”63 In fact, the study finds that: 

Students graduating from certificate programs at for-profit institutions had an average net tuition of 

$8,649, compared to $1,052 for their peers at public institutions. This represents a difference of 

$7,597, which is much higher than the average direct state subsidy of $4,506 the public institutions 

in this analysis received. Direct appropriations do not account for the entire difference in net tuition 

between public and for-profit colleges, meaning other factors are still responsible for the disparity 

between the two sets of schools. As discussed earlier, for-profit institutions’ graduates also have 

lower earnings, on average, than public institutions’ graduates. Consequently, even if the median 

debt burdens across both types of institutions were equalized, a disparity would still remain in GE 

pass rates.64 

61 83 Fed. Reg. at 40,174. 62 84 Fed. Reg. at 31,431. 63 Preston Cooper & Jason D. Delisle, “Measuring Quality or Subsidy? How State Appropriations Rig the Gainful 

Employment Test,” American Enterprise Institute 10 (Mar. 2017), http://www.aei.org/wp-content/uploads/2017/03/MeasuringQuality-or-Subsidy.pdf. 64 Id. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IQA Appeal 

U.S. Department of Education 

Page 18 of 21 

July 31, 2019 

The Department focuses exclusively on the Delisle and Cooper research’s hypotheses, and not the 

conclusions ultimately drawn from testing those hypotheses, in clear violation of the IQA. 

NPRM STATEMENT IQA VIOLATION DEPARTMENT RESPONSE 

“In the case of cosmetology 

programs, State licensure 

requirements and the high costs of 

delivering programs that require 

specialized facilities and expensive 

consumable supplies may make these 

programs expensive to operate, 

which may be why many public 

institutions do not offer them. In 

addition, graduates of cosmetology 

programs generally must build up 

their businesses over time, even if 

they rent a chair or are hired to work 

in a busy salon.”65 

1. Fails to identify data sources 

2. Fails to confirm and document 

the reliability of the data 

“Our statement was intended to give 

further examples of ways that 

cosmetology programs have been 

challenged in implementing the GE 

regulations. . . . It is unclear why 

public institutions do not operate 

cosmetology programs in greater 

numbers, but NCES data point to 

the limited number of enrollments in 

cosmetology programs among public 

colleges and universities.”66 

Basis for Appeal: The Department’s response is inadequate and incomplete. It fails to identify any 

sources that support its facual assertion that cosmetology programs struggle to comply with the 2014 

Gainful Employment rule due to state licensure requirements and high operating costs. In addition, at the 

same time that it acknowledges that the Department does not know why more public institutions do not 

offer cosmetology programs, the Department nevertheless offers its (unsubstantiated) opinion about the 

underlying reasons. The Department’s response also mentions NCES data that lends support to its 

assertion that public institutions do not offer as many cosmetology programs, but fails to identify that 

source. Thus, the Department’s IQA violation remains. 

NPRM STATEMENT IQA VIOLATION DEPARTMENT RESPONSE 

“[S]ince a great deal of cosmetology 

income comes from tips, which 

many individuals fail to accurately 

report to the Internal Revenue 

Service, mean and median earnings 

figures produced by the Internal 

Revenue Service underrepresent the 

true earnings of many workers in this 

field in a way that institutions cannot 

control.”67 

1. Fails to present conclusions that 

are strongly supported by the 

data 

a. The IRS tax gap study cited 

by the Department does not 

support the Department’s 

specific conclusions about 

cosmetology graduates. The 

study is from 2012 and 

covers tax year 2006 only. 

2. Fails to confirm and document 

the reliability of the data 

“Throughout the 2014 and 2018 

negotiations, as well as between 

those negotiations, the Department 

has heard from cosmetology 

programs and their representatives 

on this matter. . . . In the 2014 Rule, 

the Department admitted that 

individuals who work in barbering, 

cosmetology, food service, or web 

design may under report their 

income . . . and hoped that the 

alternate earnings appeal would 

provide an opportunity to correct 

earnings in those fields. . . . 

65 83 Fed. Reg. at 40,174. 66 84 Fed. Reg. at 31,431. 67 83 Fed. Reg. at 40,174. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IQA Appeal 

U.S. Department of Education 

Page 19 of 21 

July 31, 2019 

However, the Department lost a 

lawsuit . . . and is no longer able to 

deny earnings appeals based on the 

failure of institutions to meet the 

survey response rates dictated by the 

2014 Rule.”68 

Basis for Appeal: The Department’s response is inadequate and incomplete. It fails to provide data 

sources sufficient to support its assertion that cosmetologists routinely fail to report their tip income. 

Instead, the Department continues to rely upon a single study from the 2006 tax year along with anecdotal 

evidence. Rather than respond to the data quality issue, the Department also engages in a policy debate 

about the perceived problems with the alternate earnings appeals process, including a lawsuit regarding the 

survey response rate dictated by the 2014 rule. But that policy debate is irrelevant to the IQA. Thus, the 

Department’s violation remains. 

NPRM STATEMENT IQA VIOLATION DEPARTMENT RESPONSE 

“We believe that the analysis and 

assumptions with respect to earnings 

underlying the GE regulations are 

flawed.”69 

1. Fails to draw upon peerreviewed, scientific evidencebased research 

2. Fails to confirm and document 

the reliability of the data 

“[T]he Department is referring to a 

claim made in the 2014 Rule that 

graduates of many GE programs 

were earning less than those of the 

average high school dropouts. Upon 

further review of the Department of 

Labor data used to make this claim, 

the Department has determined that 

the claim was inaccurate. First, the 

Department did not differentiate 

between program completers and 

program drop-outs in calculating 

earnings outcomes. . . . In addition, 

the figure used to represent the 

earnings of high school dropouts 

was derived by multiplying a weekly 

earnings figure by 52. . . . However, 

the BLS report on Contingent 

Workers shows that individuals 

without a high school diploma are 

more likely . . . to have employment 

that is not expected to last or that is 

described as temporary. Therefore, 

[the Department’s prior estimate] 

inflate[d] the likely earnings of high 

school drop outs. [This inflated 

figure] was compared to SSA 

earnings data for GE program 

graduates that included individuals 

working full-time, part-time, 

68 84 Fed. Reg. at 31,431. 69 83 Fed. Reg. at 40,175. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IQA Appeal 

U.S. Department of Education 

Page 20 of 21 

July 31, 2019 

individuals who are self-employed, 

and those who may not report some 

or all of their earned income. It is 

illogical that students would earn less 

after completing a postsecondary 

program than they would have had 

they not completed high school.”70 

Basis for Appeal: The Department’s response is inadequate, incomplete, and in error. Initially, it claims 

that the 2014 Gainful Employment rule erroneously lumped together completers and drop-outs to 

determine the earnings of GE program graduates. A few sentences later, the Department states that the 

earnings data was “for GE program graduates,” including those who had full-time or part-time jobs, were 

self-employed, or underreported some or all of their income. The former would be an inaccurate claim in 

need of correction. But from the Department’s reasoning, it is difficult to tell what actually took place with 

the GE earning calculations. In addition, the Department claims that it should not have previously 

determined the annual earnings of high school drop-outs by calculating their weekly earnings and 

multiplying that number by fifty-two. It argues that these drop-outs are more likely to have temporary 

employment. However, the Department cites a single source in support of this assertion that does not, in 

fact, make that same claim. Instead, that non-peer-reviewed source concludes only that contingent workers 

are twice as likely as noncontingent workers to have less than a high school diploma and more likely to work 

part-time. In other words, the Department response is insufficient under the IQA. 

NPRM STATEMENT IQA VIOLATION DEPARTMENT RESPONSE 

“There are student costs and 

benefits associated with enrollment 

in a program that would have 

otherwise lost eligibility to 

participate in the title IV, HEA 

programs under the GE regulations; 

however, the actual outcome for 

students enrolled in failing or zone 

programs under the GE regulations 

is unknown.”71 

1. Fails to draw upon peerreviewed, scientific evidencebased research 

2. Fails to identify data sources 

3. Fails to confirm and document 

the reliability of the data 

None 

Basis for Appeal: The Department’s response is inadequate and incomplete because it did not include a 

response to this specific IQA violation. 

* * * 

Pursuant to the ED Guidelines, this appeal must be subjected to an impartial review conducted by parties 

other than those who prepared the Department’s initial response.72 While we await the Department’s final 

70 84 Fed. Reg. at 31,432. 71 83 Fed. Reg. at 40,178. 72 All three versions of the guidelines make clear that “appeals are subjected to an impartial review that is conducted by 

parties other than those who prepared the Department’s decision.” See, e.g., Ex. A at 15. In considering prior appeals, the 

Department has convened a review panel “made up of parties other than those who reviewed” or responded to the original 
 

 

 

 

 

 

 

 

 

IQA Appeal 

U.S. Department of Education 

Page 21 of 21 

July 31, 2019 

response, we reiterate our request that the Department rescind the NPRM and its corresponding final rule 

immediately and, if the Department desires, correct and reissue the NPRM with information that complies 

with the IQA. The Department should then reopen the public comment period. 

If you would like to speak with us, or have any questions regarding this submission, please contact Student 

Defense’s Counsel, Robyn Bitner, at robyn@nsldn.org. 

Sincerely, 

Student Defense 

petition. See, e.g., Letter from Winona H. Varnon, Principal Deputy Assistant Sec’y for Mgmt., U.S. Dep’t of Educ., to Michael D. 

Hays & Jonathan C. Glass, Dow Lohnes (June 1, 2011), https://www2.ed.gov/policy/gen/guid/iq/2011/dowlohnesresponse.pdf. We expect the Department to follow similar procedures here.